Lord Peyton of Yeovil: asked Her Majesty's Government:
	Whether they will set up an independent inquiry into the workings of Parliament, and, in particular, the relationship between Government and Parliament.

Lord Holme of Cheltenham: I was just checking. He described it as an elective dictatorship. Does the noble Baroness agree that in the intervening years—despite, as she rightly said, a flurry of constitutional reform in the first years of this Government—on the whole, the power of the Executive has increased, is increasing and ought to be diminished? Finally, does she agree that, given the plethora of outside reports—this makes me sceptical of the desire of the noble Lord, Lord Peyton, for an independent inquiry—including two from the Hansard Society and one from your Lordships' Constitutional Commission, the need is probably less for an independent inquiry and more for an exercise of political will not just on the part of government but on the part of Parliament itself?

Baroness Amos: My Lords, I have a certain sympathy with the noble Lord, because I had forgotten the quotation myself. A government who have introduced a Human Rights Act, a Freedom of Information Act and a Constitutional Reform Act cannot be accused of having moved the balance of power in favour of the executive. With respect to some of the reports that have been prepared about the role of Parliament, I have seen myself that any number of Members of this House will stand up to talk about the importance of the role of Parliament and of Parliament liaising with the public. Those are things for which Parliament and this House should take responsibility, not look to the Government to deliver.

Baroness Amos: My Lords, I thought that the noble Lord, Lord Strathclyde, in his initial references, was going to talk about the 18 years of Conservative government, rather than starting in 1997. He will know that the Legislative and Regulatory Reform Bill is designed to reduce burdens on business. Some concerns have been expressed, and my honourable friend the Minister at the Cabinet Office is meeting the chairmen of the Select Committees to discuss several points that have been made. There are proposals to put some amendments to another place before Report stage, and we will, of course, consider the Bill in our own time.

Lord Geddes: My Lords, the noble Baroness referred to the IMO, an organisation, worthy though it is, not known for its lightening speed of reaction and response. To what extent are Her Majesty's Government able to take independent action in this respect and to what extent are they dependent on IMO approval?

Baroness Crawley: My Lords, the setting up of the 32 MEHRAs is a matter for the British Government. We also are within a protection zone of the IMO, but the setting up of these sensitive areas is a matter for us.

Baroness Morgan of Drefelin: My Lords, is my noble friend aware that today, the All-Party Parliamentary Group on Cancer launched a report recognising the successes in cancer treatment and the achievements of the cancer plan? Will he welcome a debate on how to build on that success and how to revise and develop the cancer plan further? Does he agree that, although waiting time targets are a key driver for improving cancer services, they are complex and sometimes hard to define? Does he also agree that empowering patients more and ensuring that the time before research findings are used to patient benefit is reduced could further improve cancer services in the UK?

Lord Triesman: My Lords, there should be complete freedom in our world for people to practise their religion and to do so without threat or restraint.

Baroness Falkner of Margravine: My Lords, we welcome the efforts of Her Majesty's Government in support of the charges against Mr Rahman being dropped—we rejoice in his release—but does the Minister agree that there will continue to be an ongoing problem regarding the incompatibility between the Sharia code and some human rights norms? In addition, do the Government agree that the solution to this may be longer-term education? What are HMG doing to advance educational programmes in Afghanistan, in particular human rights programmes?

Lord Triesman: My Lords, extensive human rights programmes are funded by the United Kingdom Government in Afghanistan. I believe that I am right in saying that we are among the largest of the bilateral donors to those programmes. I shall not comment on the issues regarding the interpretation of Sharia law—it is not the place of any Minister in a government to do so—but I think that we should encourage Afghanistan to ensure that the provisions of its law and constitution ensure that the implementation of Sharia law accords in legal code terms with the international obligations to human rights law to which that country has signed up. That would be the basis on which proper progress can be made.

Lord Triesman: My Lords, yes. My point is not that there should never be a discussion of Sharia or any other form of law, just that the fundamental obligations into which every nation enters when it signs up to international law on human rights is the fundamental basis on which they should conduct their legal processes. That is the only way in which there is a set of universal values about people's rights in all respects, including their religious rights. If we base ourselves on that foundation—set out, after all, in the charter of the United Nations—we will probably not go wrong.

Lord Triesman: My Lords, the troops from the United Kingdom and from other countries are there to secure a democratic society in which people can freely live under a constitution that is committed to international law. Everybody in the international community is entitled to say, where they see human rights being breached, that they are opposed to it and to argue that, irrespective of whether or not they have troops in the country.

Moved accordingly, and, on Question, Motion agreed to.
	Commons reasons
	[The page and line references are to Bill 28 as first printed for the Lords.]
	16 Clause 5, page 4, line 44, leave out "must" and insert "may, if the individual so chooses,"
	22 Clause 8, page 7, line 42, leave out "must" and insert "may, if the individual so chooses,"
	The Commons insist on their disagreement to Lords Amendments Nos. 16 and 22 but propose Amendments Nos. 22E and 22F in lieu— 
	22E Page 7, line 38, after "accompanies" insert "or includes"
	22F Page 7, line 43, leave out from "manner" to the end and insert "ensure that an application to be issued with such a card accompanies or is included"
	The Lords do not insist on their Amendments Nos. 16 and 22, in respect of which the Commons have insisted on their disagreement, do disagree with the Commons in their Amendments Nos. 22E and 22F in lieu, and do propose Amendments Nos. 22G and 22H in lieu—
	22G Page 4, line 44, after "individual" insert "and is made on or before 31st December 2011, that application may, if the individual so chooses, include an application by that individual to be entered in the Register.
	(2A) Where an application to be issued with a designated document is made by an individual and is made after 31st December 2011,"
	22H Page 7, line 42, leave out from "card" to end of line 2 on page 8 and insert "may, if the individual so chooses, in the prescribed manner, include an application to be issued with such a card in any application made by him to be issued with a designated document, where that application is made on or before 31st December 2011.
	(7A) An individual who is not already the holder of an ID card must, in the prescribed manner, include an application to be issued with such a card in any application made by him to be issued with a designated document, where that application is made after 31st December 2011."
	The Commons disagree to this amendment for the following reason—
	22GA & 22I Because the Commons do not consider it appropriate to delay until 1st January 2012 the commencement of the rule that a person applying for a designated document must at the same time apply to be entered in the Register and to have an ID Card issued to him

Baroness Scotland of Asthal: My Lords, I understand entirely the way in which the noble Lord put it. We had an interesting debate on whether that was the effect and the costs that would flow from that position through having to develop two databases. We went through those issues quite fully. The noble Lord, as I understand it, is saying that, in principle, the connection in relation to designation was accepted and that the position was only in relation to when that would take effect and whether it would most probably follow another general election. However, the amendment with which we are dealing today puts us back to the position prior to the noble Lord's previous set of amendments and to where we were some considerable time ago when he was still arguing, as a matter of principle, that the designation should not be connected. I agree with the noble Lord in relation to that.
	Turning to the issue with which we are now dealing, the connection between those two elements is clear in our current structure. The situation is that it is intended that designated immigration documents—such as residence permits issued to foreign nationals as well as passports issued to British citizens—should have the designated connection. We are proposing that but it is being countered. The Government have already also made clear the intention to create a new agency, based on the United Kingdom Passport Service, which would be responsible for issuing passports and identity cards. The plans for that agency are predicated on the introduction of a seamless process for the issue of passports and identity cards as a single package. Any opt-out or opt-in would increase the complexity, and thus the uncertainty, of planning the rollout of identity cards.
	I explained the history from November 2003 to date on the last occasion. I will not weary the House with that again but I appreciate that the noble Lord, Lord Armstrong, has not necessarily been on that journey with us month by month. He has been deprived of that pleasure, but those of us who have taken that journey can remember it well. Issuing an identity card together with a passport does not require anyone to use that card unless they wish to do so. In fact, Clause 18 of the Bill specifically prohibits any requirement to produce an identity card as the only proof of identity unless there is a specific provision—

Lord Armstrong of Ilminster: rose to move, as an amendment to Motion A, at end insert "but do propose Amendments 22J and 22K in lieu".
	22J Clause 5, page 4, line 44, leave out from "individual" to end of line 4 on page 5 and insert—
	"(a) if the individual is not already entered in the Register, his application for a designated document must include or be accompanied by an application by that individual to be entered in the Register unless he has stated in or with his application for a designated document that he does not wish to apply to be entered in the Register;
	(b) if the individual is already entered in the Register, his application for a designated document must either state that he is already entered in the Register and confirm the contents of his entry or state that he is entered in the Register and confirm the contents of his entry subject to the changes notified in the application."
	22K Clause 8, page 8, line 2, after "document" insert "in which he has not included or which is not accompanied by a statement in accordance with section 5(2) that he does not wish to be entered in the Register"

Lord Armstrong of Ilminster: My Lords, I should declare a personal interest. My existing passport expires in 2008. If the Identity Cards Bill enters the statute book with the amendments that I have proposed, and if passports have been designated for the purposes of the Act by the time I apply for a new passport, I shall have the option to state that I do not wish to apply for my name to be entered in the register. I assure your Lordships that I am not moving these amendments in order to give myself that option. I should be minded not to exercise that option if and when the opportunity arises.
	I also assure your Lordships, and particularly the noble Baroness, Lady Scotland, that in proposing these amendments I am not seeking to make some kind of mischief. I have no ulterior purpose to delay the progress of the Bill on to the statute book; indeed, my purpose is to expedite that progress. I am trying to find a way of avoiding the use of the Parliament Act to force the Bill through, because I do not think that this is an issue on which it would be appropriate to have recourse to the Parliament Act. The Bill will reach the statute book more quickly if recourse to the Parliament Act can be avoided.
	The Bill as drafted says that anyone applying for a passport or other designated document whose name is not entered in the national identity register "must" apply to have his name entered in the register and to receive an identity card. Previous amendments proposed by the noble Lord, Lord Phillips of Sudbury, and rejected in another place said that anyone applying for a designated document "may", if he so wishes, also apply to have his name entered in the register. In other words, he could opt into the register and receive an identity card if he wished to do so, otherwise his name would not be entered in the register and he would not receive an identity card. With my amendment, it is not a question of opting in; it is a question of opting out. My amendments would have the effect of requiring anyone applying for a designated document to apply to have his name entered in the register unless he states that he does not wish so to apply. In other words, he could opt out if he wished to do so; otherwise he would have to apply—have to apply—to have his name entered in the register.
	I was glad to note that, in the debate in the other place last week, the Secretary of State welcomed my intervention in our debate of 20 March as being helpful. It seems to me that my amendments would give the Government a great deal of what they want. The presumption would be that when someone applied for a designated document, he would also apply to have his name entered in the register. That would be, if you like, the line of least resistance—one might say, the default course. It would require a positive act to opt out, not a positive act to opt in.
	Like the noble Baroness, Lady Scotland, I believe that most people applying for passports would be content to have their names entered in the register, as I would myself. No doubt, however, there would be some who, for whatever reasons—and not all of them discreditable—did not wish their names to be entered in the register. I believe that they would be relatively few.
	The resolution of this issue by opting out rather than opting in would not be as neat and tidy as making it compulsory for someone to apply to have his name entered in the register if he is applying for a designated document. But there is an issue of personal freedom that should not be brushed aside as being of no consequence. I shall not enter into a learned discussion about what the Labour manifesto said or did not say at the previous general election, or what it meant or did not mean. If I may be forgiven for saying so, I have spent enough time in my earlier life trying to understand and interpret the subtleties of party manifestos, and I do not desire or need to revert to that occupation now.
	There are a good many people out there who genuinely thought that the Government were proposing a voluntary scheme, and they were prepared to go along with it on that understanding and the prospect of later legislation to introduce compulsion. My amendments would restore an element of voluntariness—of personal freedom—which is absent from the Government's proposals. I understand that it might complicate administration and add to costs to allow people to opt out, as I propose. There is no knowing what the extra costs would be. However, with respect to the noble Baroness, to say that it puts a coach and horses through the legislation is something of an exaggeration. Compared with the total costs of the identity card scheme, the extra cost would be negligible, or at any rate relatively marginal. The preservation of a measure of personal freedom is surely worth some cost and some administrative untidiness.
	As the noble Baroness reminded us again just now, anyone who feels strongly enough about the linkage and does not want to be issued with an ID card in the initial phase will be free to surrender their existing passport and apply for a new passport before the designation order takes effect. Why should someone who feels strongly enough about the linkage be obliged to follow the roundabout device of giving up his passport prematurely and applying for a new one some time before his existing passport runs out, thus incurring the cost of renewing his passport before he needs to do so? Why is that preferable to the straightforward course of giving him a right to opt out of having his name entered in the register when the time comes for him to renew his passport when the old one reaches its expiry date in the usual way?
	As I said, I believe that relatively few people would take up the opportunity to opt out—the force of inertia would see to that. I saw an article in a newspaper on Sunday suggesting that the Government's position in this matter is motivated less by considerations of cost and administrative tidiness than by a desire to fit in with the proposed directive by the European Commission to require the introduction of biometric passports by the Schengen countries. I understand that this directive, as presently envisaged, would not apply to the United Kingdom. But it would no doubt be convenient if this country were in step with the Schengen countries in the timing of the introduction of biometric passports. But even if that argument were accepted as valid, it is not immediately clear why the introduction of biometric passports in the Schengen countries should make it necessary to compel applicants for United Kingdom passports to apply to be entered on the national identity register.
	Moreover, the timetable for the issue and coming into force of the European directive seems to be quite uncertain. At this early stage, I suggest that it would be the triumph of hope over experience if we were to assume that the directive would come into force on the date now suggested for it. This suggests to me that the sensible course would be to accept my amendments now and let the Bill proceed accordingly. If and when the European directive comes into effect, or if it proves that the number of people opting out under these amendments is in practice negligible, it would not be difficult for the government of the day to introduce further legislation to amend the Act so as to reverse these amendments and restore an automatic link between applying for the designated document and applying to have one's name entered on the register. Indeed, the Government could perhaps use for this purpose the further legislation for which it is already agreed that there will be a need. Alternatively, if these amendments seem to provide a basis for resolving the matter, I should be ready to consider incorporating a sunset date for return to the automatic link on the lines suggested previously by the noble Lord, Lord Phillips of Sudbury.
	In the meantime, I believe that the Government would get and deserve credit for the retention of a degree of personal freedom in this matter. If your Lordships were to approve the Motion which I propose, that should not be seen as defeat for the Government or victory for the Opposition. That is certainly not my intention. On the contrary, I would hope that both the government and the opposition parties might see what I propose as a no doubt imperfect but none the less acceptable compromise, as going some way towards meeting genuinely held misgivings, as obviating the need to have recourse to the Parliament Act and as ensuring the early passage of the Bill. I beg to move.
	Moved, as an amendment to Motion A, at end insert "but do propose Amendments 22J and 22K in lieu".—(Lord Armstrong of Ilminster.)

Baroness Anelay of St Johns: My Lords, I support the Motion of the noble Lord, Lord Armstrong of Ilminster, and oppose the Government's Motion. Motion A1 offers the Government an honourable and reasonable compromise. It comes as near as possible to giving the Government what they say they need while preserving, with the opt-out provision, the vital element of personal freedom to which the noble Lord, Lord Armstrong, has referred.
	The Home Secretary said last week that he welcomed the helpful intervention of the noble Lord, Lord Armstrong of Ilminster, and that he was grateful to him for his efforts to resolve the impasse on the matter of compulsion in the initial stage of rolling out the national register and ID card scheme. We, too, are grateful to him. He has taken a most constructive course and we give him our full support.
	As has been explained by the noble Lord and the Minister, last week we offered a different compromise to the Government, but they rejected it, despite the fact that we had tried to move a significant way towards the Government's position. The Government offered no hope of any discussions on a compromise that might resolve the impasse that we faced. We could have insisted today upon that amendment. However, we decided that it was far better to show even further flexibility by supporting the approach of the noble Lord, Lord Armstrong. His approach endorses the principle that we have espoused throughout our debates on the Bill: that it would be wrong to make the right to leave this country for all those who need a new passport conditional upon succumbing to the compulsion to be entered on the national identity register and by an ID card.
	As the Minister said, our debates have been long and complex. However, personal freedom is a matter of the utmost importance to all of us, so it is right to have taken time. I have made it clear throughout our debates on this Bill that we are seeking to reach agreement with the Government on this matter, and we remain resolved to do so.
	The Home Secretary and the Minister have claimed that this amendment would have the same defect as that offered by the House last week: that it would introduce a degree of uncertainty into the plans for rolling out ID cards on a compulsory basis linked to a person's application for a passport. But the Home Secretary has himself introduced a greater element of uncertainty by advising those who want to escape compulsion in this initial stage to surrender their existing passport and apply for a new one before the designation order takes effect. The Minister referred to that advice again today.
	Let us put aside the obvious financial penalty that would be imposed on a family who have a long period to run on their existing passports, and would, under the Home Secretary's advice, have to stump up the cost of new passports earlier than they expected. The fact is that the Home Secretary himself proposed to put more uncertainty into the system, because his advice maintains the need for two databases for a longer period. Last week, I pointed out that the Government's own position on the number of databases is obscure. Neither the Minister, nor the Home Secretary in another place, rebutted those arguments.
	The Government's system of compulsion by stealth in the initial period has real complexity in its arrangements. It must enable those who do not need a passport to sign up for an ID card. There will have to be a record of those true volunteers, in addition to those who are forced to have an ID card if they need to travel abroad for work or to visit their relatives. There is also still some confusion over whether the Government intend to adapt the passport system into the proposed national identity register; whether a separate NIR would ultimately replace the passport system; or whether the two would co-exist.
	Whatever the decision, it is clear that the ID scheme would involve multiple systems developed over time to achieve multiple functions. During our debates last week, I pointed out that the Government's policy on how they would run the scheme is still evolving. Instead of the system the Government talked about in both Houses, whereby verification of identity would be by electronic readers, Mr Burnham now says that the Government plan to use the chip and PIN system at first.
	Are the Government still making up their ID card policy on a daily basis? Well, indeed, they are. A peek at The Guardian last Thursday proved that. Health officials have now revealed that the personal data gathered on all of us could be held by several different companies, rather than in one central government database. That is one more dramatic change from the information given to us in our long debates on the Bill. It is clear that the Government have not yet determined the initial architecture of the IT system; but, as I said before, I am not necessarily criticising them for that—it may be no bad thing. If the Government are prepared to take the time to consider carefully a more effective, reliable and fair system, I would welcome that—and so, I think, would the majority of Members of this House.
	The noble Lord, Lord Armstrong, has shown us that we could find a sensible compromise on the matter of the promised voluntary rollout, as against the threatened compulsion in the initial stages. The Government's own Back-Benchers in another place advised the Government last Tuesday to adopt a compromise approach if this House returned the Bill to another place once more. I hope that the Government take the advice of their Back-Bench colleagues to heart, even if they continue to ignore me. I remain an optimist. I believe that there are always reasonable and honourable solutions to problems. It is right to take the time, now, and act in good faith to find those solutions.
	The noble Lord, Lord Armstrong, has had the most distinguished career. His expertise in reaching sensible solutions to seemingly intractable problems is second to none. His solution seems startlingly obvious. It is simple; it is just; it is fair. It is a very British compromise. I trust him, and will support him as he assists us all today to reach a solution to the problems we face.
	When the Minister made her introductory remarks today, she carefully pointed out that the Government rejected this amendment, and gave the reasons thereby. But she also said, very carefully, that she would listen to what the noble Lord, Lord Armstrong, said. I thought that was a constructive approach. If the Minister remains unable to join in the spirit of compromise offered with this Cross-Bench amendment, I shall strongly support the noble Lord, Lord Armstrong, in the Lobby, and I will urge all my noble friends to join me.

Noble Lords: Hear, hear!

Lord Phillips of Sudbury: My Lords, this is not any old Bill. It is a Bill that has the widest ramifications in terms of cost, longevity, scope and, above all—echoing the remarks of the noble Lord, Lord Armstrong—in terms of the citizen's liberty and the relationship between the citizen and the state. I note that when the Minister made her remarks, she did not refer to any of those issues. May be that is right, may be it is not. It may be a reflection of an increasing sensitivity in this Government to what might be called the "liberty issues" in relation to this massive scheme.
	To those on the other side of the House who have said that we on these Benches have opposed the Bill root and branch, I would add the following fact: we have put forward 150 or so amendments to the Bill and roughly 40 of them have been accepted by the Government as ameliorating amendments. Indeed, the noble Lord, Lord Bassam, was kind enough to compliment our efforts when we reached the end of Report stage. Any suggestion that the amendments that have been tabled hitherto, let alone the amendment that has been tabled today, were produced in a wrecking spirit cannot be substantiated.
	I accept that a Bill that started in the other place, and that has been considered as much as it has in this place, must reach the statute book. One single issue remains that prevents it reaching the statute book. The argument is made that it is wrong of us to persist in our constitutional objection and that we are wrong on constitutional grounds. Indeed, it was suggested last week that we are in some sort of constitutional crisis. There is not much sign of it in the media. I am not sure how much, if any, notice this debate will receive in the media, but as long as they remember that the ping comes from here and the pong from the other place, I am happy.
	This is the fifth time that we have sent the Bill back. This is a sensible and cautious House. The Cross Benches are highly sensitive to charges of an excess of partisan zeal. Therefore, why are we here again, in large numbers and led by a Cross-Bencher? It comes down to one fact, and, in saying that, I do not override the basic objection enunciated by the noble Lord, Lord Armstrong. On Sunday, Geoff Hoon, the Leader of the Commons, said in an interview with Sky News Sunday programme:
	"But it's always been recognised, indeed said to be a convention of the constitution, that once a government puts into its manifesto a particular proposal, then the House of Lords would not stand in the way of that proposal becoming law.
	That's one of the problems we have with ID cards. We set that out clearly in the manifesto last May—it was voted for by the British people".
	Like heck it was; but what was voted for?
	"We will introduce ID cards . . . rolling out initially on a voluntary basis as people renew their passports".
	Others have been saying, and the Minister, Andy Burnham, said it this week: "Actually forget the manifesto. What you must look at is the Bill that preceded the manifesto and the Bill that succeeded the manifesto. That is what you must look at". That is not what the convention is. That is not what Geoffrey Hoon said—and rightly said. The trouble with Mr Hoon is that he had not read his own manifesto, or he would not have dared advance the case that, We set that out clearly in the manifesto". Yes, they set it out clearly. The thing that sticks in the gullets of the majority in this House is the thought that we are doing our duty to support an act of dishonour by the other place in relation to a manifesto. How can it conceivably be a convention that this House should underpin a policy and a piece of legislation within months of an election where the Government explicitly said:
	"We will introduce ID cards . . . rolling out initially on a voluntary basis as people renew their passports".
	I know that noble Lords opposite do not like those words being mentioned. But they are at the heart of the constitutional feeling on this side of the House that this is not an occasion—and I agree absolutely with the assertion of the noble Lord, Lord Armstrong—on which we should be inhibited in resisting this single but vital aspect of the Bill.
	Finally, I would just say that events shift and uncertainties seem to breed. For those of your Lordships who think that this uniquely large and comprehensive ID card scheme is a well-considered, well-founded and well-constructed plan of campaign, I beg you to read the 42 pages of witness statements given to the House of Commons Science and Technology Committee last week, published yesterday, and if any of your Lordships really think, quite apart from any other issues, that this is a ship on which to sail on the high seas, I can only think that we inhabit different realms.
	So, it is with great enthusiasm that I support the amendment moved by the noble Lord, Lord Armstrong of Ilminster.

Lord Turnbull: My Lords, I, too, recognise the good faith of my noble friend Lord Armstrong in moving this amendment. Since he is a predecessor but two of mine, I could not do anything else. Opt-outs have a long and honourable pedigree. The whole of our economic policy is currently based on one. Equally, I am not happy with a position in which, for an unnamed period, we have two kinds of passport in circulation: let us call them "registered" and "unregistered".
	My noble friend Lord Armstrong hinted at a possible solution. In moving the amendment, it was presented as though one change was being made from the previous proposal offered by the noble Lord, Lord Phillips; a change from opting in to opting out. In fact, two changes were made; the other being the removal of a time limit. The obvious question is whether there is a solution which combines the two effects—an opt-out and a time limit.

Baroness Scotland of Asthal: My Lords, I agree with what has just been said by my noble friend Lord Young and say to the noble Lord, Lord Armstrong, that I absolutely understand the import of his amendment. His desire is to try to achieve what some would say is almost an impossibility: to find a compromise between "may" and "must". How do we do that? The House must now deal with the fact that it is impossible.
	I say to the noble Lord, Lord Saatchi, that when I made my comments I was not talking about the Parliament Act; I was talking about something far more precious and important. Over the years, this House has rightly grown in stature. It has grown in stature because of its acuity in looking at some of the issues; its good sense; its proportionality; and its balance. This House has—certainly since I have been privileged to be in it—shown sound judgment. We know when to push. We know when to test. We know when to challenge. But we also know when to desist. This is the first time in a very long time when I genuinely believe that this House may be in danger of losing that balance. It is important not just for this Bill—this Bill will come and it will go—but for all the other Bills.
	The noble Baroness, Lady Anelay, and I have had the privilege of dealing with Bill after Bill. We know the consequence of lack of judgment. We know the consequence of lack of moderation. We know that in the years to come we will pay for those issues on which we have failed to demonstrate judgment. That is why I say from this Dispatch Box, not simply as the Minister, the spokesman for this Bill, but as a Member of this House that I fear for us. I fear for us because people will look at what we do today. They will look at the fact that all of us are unelected, whether we be hereditary Peers or no—and the 92 hereditary Peers who remain in this transitional House are still hereditary for all that. There are those who say that this House should not be because we do not have the right to hold up legislation in a way that is improper. There will be those who will use this opportunity against this House.
	I do not hesitate to tell your Lordships that over the years I have grown to have enormous respect for this House and for its work. When we trespass in such a way that we challenge the high regard in which we are held, I tremble for us. I say to this House, not because of the content of this Bill, but because of the enormity of what we do, we have to understand it.
	Members opposite aspire one day to govern this country. This is about governance; we have to govern in the interests of the people of this country. I look to the noble Lord, Lord Phillips of Sudbury, and to the noble Baroness, Lady Anelay, who commented on the manifesto and the general election. I say to the noble Lord, Lord Phillips, that I believe we made it clear. Let me help him as to why. During the general election campaign, my right honourable friend the Prime Minister stated that the Identity Cards Bill would be reintroduced. A clear reference was made to the fact that the Bill which fell at the election would be brought back, including the provisions on designation.
	I shall not give way at this moment. For these reasons, I believe that there never was any doubt about our plans. Indeed, our plans were so clearly understood by the Liberal Democrats that on page 12 of their election manifesto, the manifesto which they took to the people of this country, they made the following claim. The Liberal Democrats said that "they"—meaning the Government—
	"plan to charge every citizen nearly £100 each to hold a compulsory identity card".
	That was one of the manifesto debates between the two parties.
	I shall not give way just yet. The Liberal Democrats went to the people and said that that was the Government's intention—and the people voted.

Baroness Scotland of Asthal: No, my Lords, the Government did not lie. The Government's case was clear, and the reason it was clear was because others, including the Liberal Democrats, understood what we were saying.

Noble Lords: Hear, hear!

Baroness Scotland of Asthal: My Lords, I thank the noble Lord for his intervention because he has thereby demonstrated that this issue was put before the people of this country. The people of this country then voted. I know that it is a disappointment to the noble Lord, but they did not vote for a Liberal Democrat government.
	I turn to the other issue. We still do not know the position of the Conservative Party. When on the previous occasion I pressed this matter with the noble Lord, Lord Strathclyde, he responded basically by saying that, "We'll make up minds up later, when the case arises".
	It has been suggested that this issue should be terminated until the next general election. I say that because the date proposed on the previous occasion was 2011. In this debate it has been suggested by the noble Lord, Lord Turnbull, and other noble Lords that we should postpone the date as this may provide a way forward. The date that was last suggested by the noble Lord, Lord Phillips of Sudbury, was 2011. He made it clear in his intervention that that was so as to enable another election to intervene. So it is very important for us to understand the principal position of the Tory Party on this matter, but we have not heard it. We do not know whether we are looking at bringing in provisions with which Her Majesty's Loyal Opposition would agree or disagree.

Baroness Scotland of Asthal: My Lords, of course I hear what the noble Baroness is saying, but we are still left in the position that we do not know whether noble Lords opposite will or will not accept the identity cards scheme as something that will inure to the benefit of the people of this country. We believe that it does and that it is important.
	Where are we? We are where we have been for some months. The other place has been asked to think again, with variations on the same theme. On each occasion it has answered. For the sake of the record, I should tell your Lordships what those answers have been. On 18 October 2005, the Neil Gerrard amendment was defeated by a majority of 32. On 23 January 2006, Lords amendments Nos. 16 and 22 were passed on Report by the Lords, by 186 votes to 142, an opposition majority of 44. On 13 February 2006, the two Lords amendments were then rejected, with a separate Division on each amendment, in the Commons with majorities of 31 and 51, respectively. On 6 March 2006, the Lords insisted on their amendments; the opposition majority was 61 on the Lords consideration of Commons amendments. On 13 March 2006, the Commons reversed the amendments and passed a technical amendment in lieu with a majority of 33. On 15 March 2006, the Lords again insisted, with a reduced majority of 35. On 16 March 2006, the Commons reversed the amendments with an increased majority of 51. On 20 March, the Lords disagreed with the Commons and passed two amendments in lieu, with a slightly increased majority, one vote, of 36. Then, on 21 March, the Commons disagreed with their Lordships by a majority of 43.
	I understand the reason why the noble Lord, Lord Armstrong, believes that this is helpful, but how many times are we going to say "No" to the will of the other place? I invite the noble Lord, Lord Armstrong, to think very carefully about whether he wants to press the Motion; about the impact it will have; and about the consequences for this House as regards its relationship with the other place. To be clear, I am not talking about the Parliament Act. I am talking about something I regard to be much more precious.

Baroness Scotland of Asthal: My Lords, we have conceded on many points. It is a question of judgment. We have moved and moved and moved and moved again, but I do not think that there is any space left to move to. This is a primary piece of legislation. In many of the debates, Members of this House have been almost tempted to treat it as if it was secondary legislation. This is primary legislation, which has been debated and debated and debated again.
	We are left with a central issue—should the link that designation provides be maintained or not? The other place says "Yes". It has said "Yes" consistently—not just through this Bill, but through the previous Bill, which went through all its stages in the other place before the election.
	The Gerrard amendment dealt with this issue. On every occasion the other House has said that this link must be maintained as the most effective and efficacious way of delivering what is a main, government policy. If I may respectfully say so, it is for this House now, if it honours its position and that of the other place, to give way with grace.

Lord Davies of Oldham: My Lords, my noble friends Lord Berkeley and Lord Bradshaw have pursued the issue with considerable tenacity throughout the passage of the Bill. I could not agree more with the point made by my noble friend Lord Clinton-Davis. The imprint of aircraft noise on people who live close to airports is a serious and important issue. That is why the Government address it with full seriousness and have measures in place.
	We are all agreed that action has to be taken to minimise noise and to reduce the impact of noise on households by measures referred to in the amendment but which I maintain are already substantially in place. My noble friend Lord Smith emphasised that the two airports of which he has considerable experience already have these measures in place. So have London Heathrow and London Gatwick; and Stansted will follow suit.
	The community buildings noise insulation scheme, in existence at Heathrow, meets all the standards that the Government have set. That is also true of Gatwick. Compliance is therefore already in place. "Compliance" is almost the wrong word because the airports have taken initiatives. They will need to take additional measures if noise increases. While we recognise that the growing frequency of flights occasions problems, the situation will also be mitigated by the improved quality of the aircraft and the reduction in noise from modern aircraft.
	I emphasise that airports have that consideration very much in mind. Why? It is because airports are in the business of ensuring that aircraft land there regularly, are competitive with other airports and work in an environment of broad support and approval. They will not achieve that if communities near airports stress to government that life is utterly intolerable because airports have no concept of their responsibility for the environment of those who live adjacent to airports. Airports act in their own interests when they produce such insulation schemes.
	It is not that I am not at one with my noble friends Lord Bradshaw and Lord Berkeley, who have so strongly pursued these issues, and with the noble Lord, Lord Hanningfield, on the Opposition Front Bench. I am greatly supported by the comments of my noble friends Lord Clinton-Davis and Lord Smith. We all recognise that aircraft noise needs to be tackled. Those who suffer because their homes are close to flight paths need forms of assistance.
	Previously, my noble friend Lord Berkeley raised the point that the 69 dBA Leq threshold in the Future of Air Transport White Paper, for operators of larger airports to offer households assistance with the costs of relocating, was very different from the World Health Organisation's recommended noise level of 30 dBA Leq in bedrooms at night. I am sorry to be technical, but these things have technical designations and it will be recognised that what is said at this late stage of the Bill can be interpreted as definitive on the Government's position.
	It may be helpful if I attempt to clarify this complex technical issue. The 69 dBA Leq measurement applies to a 16-hour day, from 7 am to 11 pm, and is measured out of doors. The latest World Health Organisation guideline of 30 dBA Leq relates to night noise indoors—specifically, in bedrooms—and applies to an eight-hour night, from 11 pm to 7 am. They are two entirely different measurements and ought not to be confused, because we will lead ourselves astray if we do not concentrate accurately on the issues.
	The latest World Health Organisation guideline value of 30 dBA Leq represents a level above which sleep disturbance may, depending on the nature and distribution of noise events, begin to be experienced or reported by some people who sleep with their windows open. Of course, as I have indicated, I fully appreciate that the issue of sleep disturbance will concern everyone who lives close to our busiest airports. Previous research has suggested that the incidence of sleep disturbance is especially associated with the loudest noise events and, in particular, those which produce more than a 90 dBA sound-exposure level, which is a different sound measurement from Leq. It expresses the level of a noise event as if all its energy were concentrated evenly in one second. It therefore accounts for the duration of the sound as well as its intensity. A plot connecting points of equal sound exposure level from the departure, approach, or an envelope of the two, from a particular type of aircraft is known as the noise footprint.
	The night noise insulation criterion that the Government have proposed as part of the consultation on night flying restrictions at Heathrow, Gatwick and Stansted relates to the 90 dBA sound exposure level footprint of the noisiest aircraft currently operating at each airport. Some other airports already offer night noise insulation schemes using criteria based on a SEL footprint, as do the two airports mentioned by my noble friend Lord Smith.
	Furthermore, the published advice in the Government's planning policy guidance note 24, "Planning and Noise", which has applied since 1994, takes full account of the previous World Health Organisation guideline of 35—now down to 32—night-time Leq, although the research basis for that was somewhat tenuous, as the World Health Organisation recognised at the time. Planning policy guidance note 24 advises that an outdoors night-time aircraft noise level of 48 dB Leq, eight-hour night, should be taken into account for considering new dwellings near existing noise sources; and 57 dB Leq, eight-hour night, as the level at which noise insulation should be a condition of planning permission. The voluntary noise insulation schemes at Stansted, which have had government approval, have taken account of the 57 dB Leq night contour, as well as single event night noise footprints—although the latter have had greater effect on the overall scheme boundary.
	I assure the House that the Government are committed to taking account of the latest World Health Organisation guideline values, and will do so over the 30-year time horizon of the White Paper. It is worth emphasising, however, that the World Health Organisation guideline values on aircraft noise were recommended as long-term targets for improving health, and the values are very low. It would be difficult, if not impossible, to achieve them in the short to medium-term without draconian measures; but that is not what the World Health Organisation proposed. We also support its conclusions for regular reviews and revisions to the guidelines as new scientific evidence emerges.
	We have not specified the achievement of BS8233 in setting out the circumstances in which we expect airport operators voluntarily to provide noise insulation. However, it should not be assumed that airport operators will therefore be unaware of those standards or that they will not seek to achieve them in providing noise insulation. As I emphasised in my opening remarks, there is no gain for airports by cutting corners. Providing insulation is, of course, expensive—it runs to thousands of pounds per home. But it will be in the airport operator's own interest to ensure that the insulation it provides is effective, so that the owners of the buildings that receive it are satisfied with it. BS8233 is referenced in the Government's planning policy guidance note 24 which set outs guidance for local authorities in England on the use of their planning powers to minimise the adverse impact of noise, including requiring noise insulation as a condition of planning permission.
	I apologise for the technical nature of this response, but we are talking about measurement and meeting standards, and I want to reassure the House that the Government are serious about meeting those standards. I re-emphasise that in The Future of Air Transport we made it clear that, if necessary, the Government would use their powers under Sections 79 to 80 of the 1982 Act to ensure that airport operators provide noise insulation to an appropriate standard on the basis of the White Paper criteria. I am confident that the powers we enjoy are sufficient to allow us to impose a duty on any airport operator that did not follow the minimum criteria for noise insulation that we set out in the White Paper. The Future of Air Transport also restated the Government's policy that if there is evidence that a major noise problem at a non-designated airport is not being dealt with adequately through local controls, the Government will consider further designations for the purposes of Section 78 of the 1982 Act and will therefore bring such airports within the framework of the requirements.
	I do not think that I could be any clearer, although noble Lords may think I have not tried. These are difficult technical issues, but I want to emphasise this point. Although it would certainly not be a decision that we would take lightly, the Government would indeed intervene if the circumstances warranted such action, and we have the powers to do so. As I have sought to emphasise to noble Lords, particularly noble Lords who have spoken positively to this amendment, the key airports are already compliant because it is in their interest to be so. Therefore, on the basis of the assurances that airports take this matter seriously and are providing the insulation and that the Government could act if necessary to enforce compliance with our requirements, I hope the noble Lord will feel able to withdraw his amendment.

Lord Bradshaw: My Lords, I listened carefully to what the Minister said. I quite understand the difference between 69 and 30, and I understand exactly what he is talking about. I am sure that the airports meet the minimum standards. However, the minimum standards are not good enough for the premises to which we have drawn attention: schools, hospices, hospitals, nurseries, places of worship and libraries. In fact, people who live around these airports say that they are disappointed at the level of funding for the BAA noise insulation schemes. They are particularly concerned that although it is possible to insulate against noise if all the windows are shut, it is necessary in hot weather to have ventilation systems as well or people suffocate in the interests of hearing less noise. That is not what we want people to do.
	By pressing the amendment I am not seeking to change the law, because I have accepted that the Minister has adequate powers. What I am saying is that those powers are not being used. With deference to the noble Lord, Lord Smith, I realise that things may be different in the case of Manchester and East Midlands where voluntary schemes may work. However, the people around Heathrow, Gatwick and to some extent—and in the future possibly more so—Stansted, are very concerned about the levels of noise. I should therefore like to test the opinion of the House.

Baroness Hanham: My Lords, I return to an issue that we discussed on Report. The amendment requires that the Secretary of State be made responsible for safeguarding the health of people around an airport as well as the health of people on board an aircraft. By returning to the amendment at this late stage, perhaps the Minister will accept that we still have severe concerns about the difficulties experienced by people who live near airports as a result of noise and air pollution.
	We believe that it is now necessary to tackle this matter. We had a long discussion about the impact of noise in our debate on the previous amendment. As has already been made quite clear, noise has a considerable impact on the health of children as well as adults. It is very important that we recognise this. We all know that airports are necessary, but the consequences become greater as airports become larger and the number of flights through them increases.
	It is very important that we start now to see what those health impacts are and how they can be mitigated. I do not want to tempt the Minister back into describing all the technical aspects of noise, as he did in response to the previous amendment; we will spare the House, and probably the Minister, too, from describing aspects such as the 57dB (A) leq level, which he dealt with so carefully and ably. They are really important, but we will leave them as read so that we do not have to go through them again. What we cannot leave as read is the fact that noise has a serious impact on people's health. Without doubt, people living or working under flight paths to busy airports suffer high levels of annoyance and stress. A significant proportion of those people are children, and the impact of noise on those children's lives has been shown to be severe. Their sleep patterns and their ability to concentrate are severely affected, but are ameliorated when children leave the vicinity of an airport.
	Having drawn attention to the fact that noise is a health problem, I shall concentrate on aircraft emissions, which affect local air quality. That impact is often augmented by road, rail and traffic emissions associated with airports. Research conducted at JFK Airport in New York reported that the airport was the largest single source of nitrogen oxides and the second largest source of volatile organic compounds in New York. The British Lung Foundation states that these pollutants alone can impair respiratory cell function, damage blood capillaries and attack the immune system. Together, however, the two chemicals can also combine to form ground-level ozone, which damages the respiratory system and causes breathing difficulties.
	In Committee, I was heartened to learn of the Government's commitment to the WHO's guidelines for noise. However, I ask the Minister for a much firmer commitment on the time scale for meeting those guidelines than he has already given. Clearly, those who currently live in the vicinity of airports are already severely affected by the consequences of aviation, and they will not be satisfied by a vague commitment without a clear timetable of actions to meet those guidelines. You only have to drive past Heathrow to get a wave of diesel fumes, even from quite a distance.
	Aviation is a unique industry that creates a specific set of health problems not only in aircraft but in the environment around airports. Those problems must be addressed. The Bill offers a timely opportunity to underscore the Government's commitment to the health of all those people whose lives are affected by aviation. The extension of the Secretary of State's powers, which the amendment would effect, would send a clear message to all those involved that the Government are taking the problem seriously. To pass up this opportunity would be to suggest to those living in close proximity to airports that their health and well-being are significantly less important than the health of the flying ticket-buying public. The Government have made a clear commitment to expanding aviation. I hope that they will embrace the responsibilities that come with this policy. I beg to move.

Lord Borrie: My Lords, my name is associated with this amendment, and I am pleased to be able to follow the remarks of the noble Lord, Lord Bradshaw, who has made a clear case based most essentially on one fact—namely, that the behaviour of customers has changed over the past 10 years. Their behaviour 10 years ago was largely to use package holidays when going on a holiday abroad. The ATOL licence ensured that if the holiday did not take place and the customer lost money, compensation was available. More importantly, if one was stranded abroad on a package holiday, the scheme, through the licence, would enable one to get back home. The change described by the noble Lord, Lord Bradshaw, means that now there is no such protection.
	There are trade associations who are not interested in consumer protection. However, one for which I have plenty of praise is the Association of British Travel Agents. For decades it has had arbitration schemes which use independent arbitrators when there are difficulties between tour companies, airlines and the passenger. It is fully in support of this change. The Government are always entitled to reject advice, but on this occasion they have had advice not only from what the noble Lord, Lord Bradshaw, described as their own regulator, the Civil Aviation Authority; they have had advice from Ernst & Young, who have done the figures, from the Consumers' Association, from Virgin Atlantic and from the Association of British Travel Agents. What more can you do?
	The noble Lord has described what more there has been—there has been this latest Select Committee report from the House of Commons. I wonder what the Minister has got to put against it. I would hate to describe the Minister as arrogant. I know he is not. I have had experience of discussions with him on a number of recent Bills in which he has been involved, and he is the very furthest remove from any touch of arrogance. But I cannot actually find a suitable word for what he seems to have been guilty of up to this point in the discussion on the Bill, but it is not one which I think is easy for him to defend.
	I want to mention one small aspect of his argument in Committee. He rightly said that there were many areas where insurance was perhaps desirable, but we— the Government, Parliament—do not make it compulsory. That is true even in road traffic matters, where we have had some kind of insurance since 1930, I believe. We make it compulsory only in relation to liability to third parties. But this is a very different situation. In this case there has in practice been protection for years and years, the result of which has been partly explained by the noble Lord, Lord Bradshaw. Many of those who now make their own travel arrangements, , as is the custom nowadays, think they are covered by ordinary travel insurance, when they are not. If they happen to use a credit card, then Section 75 of the Consumer Credit Act gives them protection. I am glad to say that our Law Lord friends in the House of Lords, in their judicial decision earlier this month, said that that applied when the consumer bought things from foreign suppliers. So, the alternative supplier—namely the supplier of the credit card—is liable for any purchase, whether airline tickets or shopping purchases between £100 and £5,000, I think. But of course many people do not think about the subtlety of using a credit card instead of a charge card such as American Express or a debit card. There are other methods of payment, too, but they do not have that peculiar advantage of using a credit card which I have just described.
	In practice we have had protection, but as the noble Lord, Lord Bradshaw, explained, it is a diminishing protection as ever fewer people go on package holidays as distinct from making their own arrangements. I think that that is a sufficient argument for this amendment, which is so modest in its implications and yet so significant if you think of people stranded abroad on their holiday.

Lord Howe of Aberavon: My Lords, I wonder quite why I find myself taking part in this debate because it is not a topic into which I normally venture. It may be because I smell the scent of aviation fuel after having had the privilege of representing for 22 years the eastern frontier of Gatwick airport. The other reason is that I declare an interest as honorary president of the Consumers' Association—Which?, as it now is. I cannot add any substance to the arguments already advanced, except to sum them up in a way that seems to me should be overwhelming to the Minister as he sits in his place.
	Never have I previously encountered a proposition of this kind, one which has the support of almost every organisation in sight: almost every organisation in the travel industry, the Parliamentary Select Committee in the other place, along with every consumer representative association. However, the Minister stands alone, unable to summon any witness or supporter to his aid. The argument has been advanced that the proposal is in some way unacceptable because it would be a compulsory scheme, but that was a characteristic of the ATOL scheme before it. A further argument has been advanced that it is in some way a stealth tax. First, it is a not a stealth tax; secondly, the sum involved is so minute as to be invisible; and thirdly, it is a charge which it has been proclaimed in advance will be reduced as soon as the fund reaches a point of sufficiency. Having read the Minister's speeches at previous stages of the debate, I find it impossible to work out quite why so Horatio-like he stands upon such a fragile bridge.
	I will try to express the nature of the proposal in a different way. Far from being a tax, it is an immensely attractive one-way bet. A pound a throw and the reward, if you ever have to claim it, could be a substantial sum. In every conceivable way it is beneficial, save only for the Minister, who is proclaiming himself—sadly, alas, and uncharacteristically—to be a ministerial masochist. I wish him well, but do not believe that he will convince the House in any way.

Lord Clinton-Davis: My Lords, I am delighted to follow the noble Lord, Lord Howe of Aberavon, whether or not he was brought to the debate by the smell of aviation fuel. He may have other reasons—there are better ones.
	My noble friend, for whom I have a tremendous regard, was for many years a colleague of mine in the Commons. I am delighted that he is here, but I am profoundly unimpressed by the arguments that he has adduced. When we debated the subject in Grand Committee on 8 December, he said that this decision was arrived at in full recognition that there were as many arguments on one side as on the other. I have heard arguments only on one side—except from him. Apart from the airlines, I do not think that anybody supports the idea that he now propounds.
	I say that with some reluctance, because I am totally baffled by the stance that the Government have taken on this issue. The position has been recommended by the Civil Aviation Authority, among many others, as was said by my noble friend Lord Borrie. What arguments are to be adduced here?
	As far as I know, the organisations representing passengers are totally in favour of doing away with the present position. As far as I know, most consumer organisations are also in favour of this. I am totally bewildered by the stance that my noble friend has taken in this regard, but I am prepared to absolve him. He is not the Aviation Minister. He is determined by policy made by other people. I have a very high regard for him. I hope he will not let us down, but I fear that he will. On this occasion, I cannot think of a single issue that defies the logic of this amendment, which I wholly support.

Lord Davies of Oldham: My Lords, we move from arrogant to complacent. As I recall—the noble and learned Lord, Lord Howe, will perhaps confirm it—Horatio had an attribute of courage. Lonely I may stand, but I also recall that Horatio had considerable success in his lone stance with two colleagues. On this argument, I have more than two colleagues on my side.
	I intend to address the issue in principle, because I am certainly upset by the statement of my noble friend Lord Clinton-Davis—I was grateful for his kind words, until he delivered the killer blow—that he could find no one who agreed with me. I emphasise that there are arguments on the other side, which I will deploy as best as I can in a moment. Those arguments convinced the Government to take their stance, fully aware of the representations received from other quarters and mindful that, as the noble Lord indicated and other noble Lords have emphasised, the Select Committee in another place took a different view from the Government.
	Let me deal with a less than courageous response, the low blow that I could deliver at the end of this debate. That would be a little demeaning, but ought to be effective, if noble Lords recognise that at this very late stage of the Bill we can deal only with amendments that deliver what they say that they want to deliver. The problem with this amendment is that it does not.
	The amendment will not give extra protection to airline passengers. While it widens the contributors to the Air Travel Trust by charging all airline passengers on all UK flights, it does not likewise widen the beneficiaries of the fund. The Air Travel Trust can pay out only to customers of package operators. It cannot pay out to flight-only customers unless the deed governing the trust is varied to extend the beneficiaries under it. Varying the deed is a matter for my right honourable friend the Secretary of State. The new clause does not give him the specific power to do this. Airline passengers, therefore, could be left paying for a benefit that they could not access. The proposed levy would simply add a financial burden to more than 20 million airline passengers per year, yet those passengers might not benefit from the Air Travel Trust if their airline became insolvent, because of the deficiency in the amendment. That is why I hope that it will not be pressed to a vote—it will not put in the Bill that which noble Lords intend.
	It would be a weak response if I relied solely on that matter. I have been challenged to identify whether there are any arguments that substantiate the Government's position. We accept that there is considerable weight of opinion on the other side. It was voiced in this House both today and in previous debates on the Bill. As I mentioned, the Select Committee in the other place took a different view. Originally this was a proposal from the Civil Aviation Authority, a body that we also take seriously on these matters.
	We oppose the levy in principle. We considered the Civil Aviation Authority's proposal carefully, but we were not convinced that it would be fair, fully effective or proportionate. Our arguments are these—first, it is not fair because the bulk of the £250 million fund, which the CAA intended to build up, would have been spent on refunds, not on repatriation. It would have benefited in particular those who take expensive trips with financially insecure companies. Moreover, as a matter of principle, the state does not generally organise refunds for products where the supplier goes bankrupt before delivery. That is a Pandora's box for the House to recognise if ever there was one.
	Secondly, it is not fully effective, because independent travellers would be covered only for their flights—not for their hotel, campsite or car-hire company—solely for the flight.
	Thirdly, it would not be proportionate, because UK airlines have committed themselves already to helping stranded passengers return home at moderate cost. The European Low Fares Airline Association has certainly reviewed the experience last summer with EUjet and agreed to improve arrangements; for example, better communication, keeping offers open for at least two weeks and making seats bookable. These days, when there are so many options for travel, people are far less likely to be stranded overseas, with no alternatives to getting home, than would have been the case in previous decades.
	As regards refunds, travellers have other ways of protecting themselves. They can buy insurance, which covers scheduled airline failure. They can pay by credit card, to which my noble friend Lord Faulkner referred. I recognise, of course, that that carries a surcharge but it gives protection under the Consumer Credit Act for transactions over £100. We do not believe that those who have protected themselves should have to do so twice over, as they would under a levy. Instead we shall continue to encourage airlines to include information to passengers booking online that flight-only bookings are not ATOL-protected. Both British Airways and Flybe have posted such a message and amended the travel insurance they sell to include cover for scheduled airline failure. British Airway's insurance extends to all the oneworld alliance partners. Flybe issued a press release on 1 March to draw attention to its new insurance product, offered in conjunction with AIG Insurance. Ryanair has a scheduled airline failure insurance policy available for customers to purchase from 27 March, yesterday, in conjunction with primary insurance. Some other airlines are working on this, and those already committed account for 30 to 40 per cent of the CAA's target group. In addition, the Government understand that more general travel insurance providers are working on including scheduled airline failure.
	So events have moved on from the CAA's study, which led it to make its recommendation. The CAA's study reported that only about 10 per cent of travel insurance offered scheduled airline failure cover. The situation is being transformed. Increasingly, media travel pages are drawing the need for personal financial protection to passengers' attention. In addition, there is information for passengers on the CAA, FCO and Air Transport Users Council websites. The Foreign and Commonwealth Office website has been updated to alert passengers that paying by credit card can bring financial protection—a point to bear in mind when deciding whether to pay by credit card.
	We have asked the CAA to review the existing ATOL bonding arrangements to make them less burdensome for tour operators. It has already consulted the industry informally and will go out to further consultation on its proposals very shortly. That may result in tour operators paying a single payment per customer instead of financing both a bond and a contribution to the Air Travel Trust Fund. Rather than extending compulsory cover beyond those caught by the package travel directive, we are looking to make the existing ATOL system less onerous. The directive is, however, under review by the European Commission.
	There are many areas where insurance is wise but the Government do not make it compulsory. The Government do not make it compulsory for medical insurance to be taken out for travel abroad, though people get ill or become injured on holiday. The Government do not make compulsory personal possessions insurance for travel abroad, though people lose valuables or have them stolen. The Government do not make compulsory car breakdown insurance, though people are often inconvenienced by breakdowns far from home.
	One could say that any of these eventualities is just as likely and just as distressing as being caught up in an airline insolvency. My right honourable friend the Foreign Secretary launched only last week on 21 March a new guide to consular services, Support for British Nationals Abroad. Over the past year consular staff dealt with many traumatic cases, including 4,000 British nationals hospitalised overseas, 4,000 deaths and almost 6,000 British detainees. In his statement in another place my right honourable friend said:
	"The fundamental responsibility in respect of the risks of travelling abroad must be met by travellers themselves through an appreciation of the risks and with comprehensive travel insurance".—[Official Report, Commons, 21/3/06; col. 156.]
	The Chancellor announced in the Budget that the Government would support with an initial endowment of £1 million the creation of a new terrorism relief fund to provide rapid relief to victims of terrorism at home and abroad. However, that is a unique and particular risk, an extreme case which we consider merits government intervention.
	Travel has changed substantially from when ATOL bonding was introduced in the 1970s. In those days air travel was for the few. Now it is for the many. The network of destinations and carriers has given people a choice unimaginable 30 years ago. The Government believe that encouraging personal insurance is much more in keeping with these trends. It is not for the state to step in and compulsorily enforce consumers' responsibility to themselves for the protection they need on their holidays.
	To summarise: in view of the CAA review of ATOL bonding and the improved availability of consumer information and scheduled airline failure insurance, the Government do not intend to alter their decision against a mandatory financial protection levy on international flights.
	Of course, I recognise the point that my noble friend Lord Faulkner made on the cost of EUjet travel insurance. However, travel insurance covers much more than just the flight home. I am talking about full travel insurance. That is the message we must get across to the increasing multitude of travellers. One is at far greater risk from incidents other than airline failure. We therefore have strong arguments on our side. I hope noble Lords will recognise that at least I have met my noble friend's charge that there are no arguments on the other side. We said all along that we recognised that the CAA had some good arguments to put before us, and we considered them very carefully.
	I hope that today I have deployed a convincing case against the argument, but I also hope that noble Lords will forgive me if I reiterate the point which I made right at the beginning—this amendment does not deliver what it sets out to achieve. It ought not, therefore, to be in the Bill.

Lord Hanningfield: My Lords, the implications of the burgeoning aviation industry are felt far and wide, but nowhere more so than by those communities living in the shadow of our major airports. We have already discussed several times today the problems that those communities suffer on a daily basis, but they pale in comparison to the plight of those communities threatened by airport expansion. It is important to recognise that due to the distinctive character of aviation, the blight suffered far exceeds the territorial extent of the physical development. The difference is significant. When one builds a railway line, one does not expect the train to leave the tracks and create noise and nuisance over a mile away. The inherent nature and attendant problems of aviation make it unique, which has consequences for the way in which we must compensate for the blight that it can cause.
	The amendment is designed to address the problem of generalised blight, which materialises as soon as any major airport expansion plans are made public. The problem was recognised in the 2003 air transport White Paper, when the Government signalled:
	"The airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal".
	I declare at this juncture my interest as leader of Essex County Council, since much of my understanding is drawn from my experience of Stansted airport's expansion plans. BAA's home owner support scheme has proved woefully inadequate; so inadequate that Takeley parish council—which is the major village involved—decided to pursue legal action. The case was before the High Court at the time of the Grand Committee. Although provision for judicial review was not granted, the case remains significant in two respects. First, it is clear evidence of the strong feeling in local communities that this approach to compensation is inadequate, arbitrary and unfair.
	Secondly, the case gives the argument that I advanced in Committee a significant new dimension. The legal team acting on behalf of Takeley parish council argued that,
	"the White Paper envisages a scheme to provide redress to those affected by 'generalised blight' and paragraph 12.16 envisages the relevant class of beneficiaries to be 'local people', without limiting such redress to those within a particular noise contour . . . By limiting the compensation scheme to providing redress for those 'worst affected' rather than minimising the impact on local people as envisaged by the White Paper, it failed to address instances of generalised blight which fall outside the boundary, and it is based on an irrational distinction between properties falling inside the boundary and those falling outside it".
	There is a line somewhere, and there is a house on one side and a house on the other side. It causes particular hardship.
	Consequently, at the hearing it was argued that the Secretary of State had acted unlawfully by granting policy support for the construction of a new runway at Stansted while failing to ensure that appropriate measures were in place to compensate those impacted by generalised blight. Since those were measures that the Government committed themselves to in the White Paper, the legal team argued that the Secretary of State thereby infringed the European Convention on Human Rights. I will not go into the more legal processes, but obviously people felt very strongly about it.
	I am no lawyer, but it seems that the present practice of encouraging airport operators to introduce a voluntary compensation scheme has failed the Government's stated purpose in the White Paper. The nature of the existing arrangement has the potential at least for the Government to be found in breach of their obligations under the convention.
	In light of that potential and the obvious unfairness of current voluntary compensation schemes, it would seem eminently sensible to accept the amendment and give statutory force to an equitable compensation proposal that chimes with the Government's sentiments and policies as set out in the White Paper. I beg to move.

Lord Smith of Leigh: My Lords, I shall raise two issues on the amendment. First, I was not clear from the outline of the amendment given by the noble Lord, Lord Hanningfield, how it cuts across the right that property owners have under existing legislation. Compensation is payable to householders, not on a voluntary basis but on a compulsory basis under the Compulsory Purchase Act 1965 and the Land Compensation Act 1973. I am not clear whether we are asking for additional compensation for particular groups of owners. Are they getting double the money that other people get? I was not clear on that, and I hope that the noble Lord can help.
	I wish to challenge the presumption on which the amendment is based. It assumes that airport expansion or development will have a negative impact on property prices. I challenge that very rigorously. Airport development is a catalyst for economic activity, investment, new jobs and higher incomes in the areas immediately surrounding airports. The increased wealth and new job opportunities increase demand for property conveniently located near the airport, and generally prices tend to rise rather than fall. The experience in Manchester is evidence of that. The area of the conurbation experiencing the highest house prices is south Manchester, which is conveniently located for the airport. People do not move away from airports. The Minister will know from his experience in Oldham that house prices in Oldham do not reflect the distance from the airport. Far from it; other factors comes into play. There is a presumption in the amendment that is wrong. House prices may well rise because an airport expands. When an expansion is announced—a new runway or a new terminal development—clearly some local will not like it. We understand that.

Lord Davies of Oldham: My Lords, I am in some difficulty. If I present arguments against the noble Lord, Lord Hanningfield, he says that they are not good enough and that they were not last time, but I shall say the same thing again. He presented his arguments last time, and he said the same thing again. My arguments will not be good enough for him because they were not last time, but neither were his. We do not accept some of the basic premises on which the noble Lord argues. He says that I am not to use the departmental brief. I do not need to use the departmental brief because the principles that the noble Lord puts forward are so mistaken that all noble Lords who do not have the benefit of the departmental brief will see why the Government have right on their side.
	In straightforward terms that have nothing to do with the complex arguments in my departmental brief, the Opposition are saying that we should change UK law for UK aircraft involved in this situation because this is a UK matter. The Government say that airlines and aircraft are involved in international travel. War and terrorism are international phenomena. The damage done may be in this country, but it may be overseas. The matter cannot be governed by international law alone; it is an international problem that needs an international solution.
	I am sorry if my department thought of this and it seems that I am therefore guilty of having learnt it from the departmental brief, but I assure noble Lords that that is not so. That is the fundamental division between us. I could reiterate the argument in a range of increasingly diffuse and subtle ways, but that is the heart of the difference between us. That is why the noble Lord was forced on two previous occasions to repeat his arguments—to his own satisfaction, but not to mine—and that is why my refutation on two previous occasions did not meet his requirements and will not do so today. I have nothing further to add to the overall position than that.
	My noble friend introduced an extra dimension, and I shall take a shot at responding. I spoke from the wretched departmental brief on a previous occasion, when I said that we thought that the amendment emerged from some comparison with maritime law. My noble friend has made that explicit today. He said that international maritime law provided for different aspects, so why cannot we attribute to aviation law similar concepts?
	There are several international conventions in maritime law to which the UK and many others are party that address ship owners' liability for acts of terrorism and the resultant pollution. Noble Lords will recognise that the law of the sea has to cover those issues because of, in particular, pollution of a third party's territory. Liability and compensation are treated hand in hand. There is no international convention governing aviation law in those terms, so we have nothing to fall back on. There is no corpus of law governing the international provision of aviation that meets that point.
	The noble Lord was kind enough to say that he thought that I would seek to produce some argument along the lines of an international solution. Both he and my noble friend Lord Clinton-Davis have indicated that they are doubtful about the extent to which the International Civil Aviation Organisation could produce an early solution to this complex problem. They are right to have those doubts. None of us thinks that the development of treaties that govern this area will be easy or speedy, so I share their doubts on that point.
	Before my noble friend intervenes again, I should say that it is recognised that, in the shorter term, the Government accept the need to be ready in case airlines are exposed to totally uninsurable risks. After 11 September 2001—I am sorry for repeating what I said in Committee and on Report—I said:
	"Should another terrorism incident lead to a lack of third party insurance, such that the UK aviation industry was unable to operate, the Government's intention would be to intervene as we did after September 11th".—[Official Report, 8/3/06; col. 834.]
	On those occasions, we identified the same gap that noble Lords have identified in this debate. We took the necessary action as a stop-gap measure. We hope that there is never occasion to do that again, but we undertake that, if necessary, we shall act in like manner. Aviation cannot be subject to anything except international law in the long run. That is why we cannot abstract from international aviation law a parallel with maritime law, and that is why the amendment will not hold.

Lord Hanningfield: My Lords, one good thing about the amendment is that I have been able to work with the noble Lord, Lord Clinton-Davis, with all his experience of aviation matters. Again, as I expected, I am disappointed by the Minister's answer. I am grateful, as I am sure others will be, for the Government's guarantee to intervene if the system is collapsing. That is an important commitment.
	We wanted the Government to take some initiative. We agree that there have to be international treaties. However, even the maritime treaties are not signed by everyone. We have had debate in the House. Half the countries have not signed up to the maritime treaties. We seek to encourage others to sign. We still want to work towards international treaties, but we could have made some start. I disagree with the Minister when he indicates that we could not have done so.
	We have had three debates on the matter. We have aired the issue. The Government have given a commitment to intervene if need be. I beg leave to withdraw the amendment.

Baroness D'Souza: My Lords, the amendment would ensure that the UK could not in the future be in any way involved in the practice of extraordinary or unlawful rendition. There are no new arguments at this stage. I merely want to summarise and answer the Minister's response on Report.
	I am very grateful to the Minister for a generous meeting earlier this week. He agreed on Report that there were no legal obstacles to stopping and searching aircraft suspected of being involved in unlawful rendition and that in fact the relevant conventions place a positive duty on governments to do so. He also said that adequate provisions already existed and that agreement had been reached with the US whereby it,
	"would have to seek our permission and we would seek reassurance that it was acting in accordance with international law".
	The Minister was asked in writing by myself and the noble Baroness, Lady Williams of Crosby, to point us in the direction of the existing legislation, to say when and where it had been used and to what effect, and to provide any formal or public statement of the agreement reached with the US on this matter. Had there been satisfactory answers to those questions I would certainly not have moved the amendment for the third time at Third Reading, but unfortunately there are no answers to what appear to me to be perfectly legitimate queries.
	The Minister says that the ordinary police powers cover the searching of aircraft, but has no instances in which those have ever been used. He repeats that there is no credible evidence that the UK has ever been involved in facilitating extraordinary rendition. But the law requires only "reasonable suspicion", and I believe that that is fully justified by the evidence from around the world that this odious practice has undoubtedly taken, and is taking, place.
	The Minister quotes from a speech recently made by the Foreign Secretary, Jack Straw, in which assurances from the US have been sought and met. I respectfully submit that these words are not sufficient and do not reassure me. Nor do they convince me that there is any new agreement with the US or firm intention to ensure that the UK has made it abundantly clear that it will never condone any aspect of unlawful rendition.
	Here I must at least mention the report of the Vienna Commission which was published after the debate at Report stage of the Bill. This body was set up by the Council of Europe specifically to examine the legal obligations of member states with regard to interstate transport of prisoners and secret detention centres. The findings by six independent legal experts are unequivocal. I quote three short sentences from this document. It states that,
	"it is worth underlining that Council of Europe member States are under an obligation to prevent prisoners exposure to the risk of torture . . . member States should therefore refuse to allow transit of prisoners where there is such a risk . . . as long as the plane is in the air, all persons on board are subject to the jurisdiction of both the flag State and the territorial State".
	It insists that member states,
	"must take all possible measures in order to prevent the commission of human rights violations in its territory, including its air space".
	I do not think that the response we have had so far from the Government will give the public confidence that there are adequate procedures to pre-empt any future involvement in extraordinary rendition. Therefore, I beg to move.

Lord Archer of Sandwell: My Lords, my noble friend has pursued this matter assiduously through successive stages of the Bill. She has argued it, if I may be allowed to say so, with compelling advocacy. I would not presume to seek to embellish what she said.
	I regret that for a succession of reasons I was not able to participate at earlier stages. I intervene now to address two issues raised by my noble friend the Minister. First, referring to aircraft which are on the ground either to take advantage of airport facilities or because they have been required to land, he said that the amendment is unnecessary because the authorities—presumably the police and Revenue officials—already have power to enter the aircraft and ascertain the purpose for which it is being used. My noble friend did not specify the powers. I make no complaint of that. Like my noble friend Lady D'Souza, I am grateful for the time the Minister spent with us yesterday. However, I have had to speculate to what powers he was referring. I think that there was a reference at some point to the Police and Criminal Evidence Act 1984. Since it was not clear to which provision in the Act he was referring, I have had to make such searches as I can.
	I accept that by Section 23, "premises" includes aircraft, so we can begin by agreeing on that. I was able to find three provisions in the statute to enter and search premises. Section 1 gives a constable power to search if he has reasonable grounds for suspecting that he will find stolen or prohibited goods. Section 8 empowers a justice of the peace to authorise a search of premises if there is evidence of a serious arrestable offence, there is material there which is likely to be of substantial value to the investigation, and it will provide relevant evidence. Section 17 gives power to enter premises for certain purposes, the major one being the purpose of making an arrest.
	None of those provisions appears to address the purpose we are discussing today. To put it at its lowest, it is not difficult to envisage circumstances where a plane is being used for extraordinary rendition where none of those provisions applies. Unless my noble friend knows of other powers which may solve the problem, there seems to be a need for subsection (3) of my noble friend's new clause. I should add that all those powers require "reasonable grounds for suspicion".
	The difficulty we face is that the officials may not be able to demonstrate grounds for suspicion of a particular aircraft. Aircraft are not transparent. The suspicion may apply to a category of aircraft which may be a fairly limited one. It is unlikely to entail a large-scale operation. The situation is most likely to arise in connection with state aircraft, and in the Chicago Convention that expression includes aircraft in military, customs and police services. Under Article 3 of the convention, no state aircraft is entitled to fly over the territory of another state or land on such territory without authorisation by special agreement or otherwise. That may help to answer the question asked by my noble friend and the noble Baroness, Lady Williams of Crosby.
	That authorisation is unlikely to be granted if the authorities in this country are not aware who the operators of the aircraft are. It is basically where the operators transpire to be certain police or intelligence agencies or—not to be too mealy mouthed—the CIA or the FBI. I suggest that even if nothing further is known about the journey in question, there is reason for further inquiry. I shall return to the reason for that. Within that category, some aircraft will be eliminated quite simply. Those remaining are not likely to entail a massive operation to enter and search them.
	My noble friend the Minister is concerned that a search may cause delay—that was his second issue. But a state aircraft will require authorisation in order to land, or it will have been required to land. If that authority or requirement is made, what is the difficulty in arranging for an official to be available when it lands? If such an official is available, what delay or inconvenience will be occasioned by his entering the aircraft and seeing who or what is there?
	My noble friend's amendment does not seek to make a search compulsory. It would simply empower the Secretary of State, or other responsible official, to conduct a search if there is intelligence leading him to consider that a search should be conducted. The intelligence will surely need to be considered in the context of what is known about the previous activities of the operators. If a criminal jury is now to be entitled to take account of previous convictions, surely officials should assess the situation in the light of the operator's record in so serious a matter as we are discussing.
	Perhaps I may refer to three instances. None of them have been the subject of a trial in a court of law, but that is the decision of the American authorities. The United States has not ratified the statute of the ICC, and they have not been prosecuted in the American jurisdiction, which is where they would otherwise be prosecuted.
	In September 2002, Canadian officials authorised the removal to Syria of a Syrian-born Canadian citizen, Maher Arar. While in transit at John F Kennedy Airport, he was taken into custody by FBI officials. He alleges that he was shackled. His request to see a lawyer was refused on the grounds that, since he was not an American citizen, he did not have the rights of an American citizen. He asked to be sent to Canada, since he was Canadian, but that request was refused. He was then put on an aircraft and taken to Amman in Jordan, and from there to Syria, where he was detained for 10 months, beaten and tortured. He has never been charged with an offence. The Canadian Government have established an inquiry into the case, but the United States Government have declined to participate.
	Secondly, in September 2003, Khalid al-Masri, a German citizen, was kidnapped in Macedonia. He was flown to a United States prison facility in Afghanistan, where he was detained for four months, allegedly beaten, and then dumped at the roadside. The United States authorities have neither confirmed nor denied those allegations. The American Civil Liberties Union has now launched a lawsuit against the CIA.
	Thirdly, Mustafa Nasr was kidnapped by the CIA in Milan, where he was a resident. He was taken to the US military base at Ramstein in Germany, and from there to Egypt, where he claims he was tortured. In December 2005, European arrest warrants for those allegations were issued against 22 CIA operatives. As my noble friend has said, investigations are going on in Europe.
	I understand that the searches contemplated by my noble friend will not be easy. Feathers may be ruffled, at least in the early stages, and we are all concerned with what has been called the comity of nations. But we are discussing a risk of people being taken to where they may be tortured. That concern is, on any showing, not a fanciful one. If there are problems, a serious attempt is required to address them. This amendment would ensure that there is the power to do that.

Lord Garden: My Lords, I rise to support the amendment, which is also in my name. Having made the case in Grand Committee and on Report, I can speak briefly. Indeed, the arguments of the proposers have not varied at any stage; the reasons the Minister has given for resisting the amendment have changed radically. We were first told, in Grand Committee, that the amendment would abrogate our international obligations and hence wreck the Bill. On Report, the Minister accepted that this was incorrect and said that:
	"The amendment would not wreck the Bill, but would not add anything to the powers we have".—[Official Report, 8/3/06; col. 848.]
	We have subsequently sought, as other noble Lords have said, to find some examples where the current legislation has led to the investigation of suspicious flights—those which might be expected to be involved in the transport of people who would subsequently be interrogated under torture. No examples of our using this legislation have come to light, although we have a widespread and growing weight of evidence that the practice has been carried out for a number of years. The noble and learned Lord, Lord Archer of Sandwell, gave some of those examples.
	We have also sought to find out the status of civil aircraft chartered by governments for the purposes of rendition. This also remains unclear. Last time we discussed this, I asked how RAF Northolt could be used as a staging post for these aircraft without prior notification of the purpose and status of these flights. Again, we have heard no answers to these questions.
	From all sides of the House, including the government Front Bench, we have heard statements of total abhorrence of the practice of extraordinary rendition. We have the opportunity, through this amendment, to clarify and systemise the legal obligations, because they are obviously not clear to the authorities. I hope that the Government will, at this eleventh hour, support this amendment, and that all noble Lords will see that we need to do this if we are to stop the practice of extraordinary rendition through Britain.

Lord Campbell of Alloway: My Lords, I ask the indulgence of the House, not having spoken before on this amendment, which only came to my notice on the morning of Report stage when I could not attend. I declare an interest as a member of the Joint Committee on Human Rights but, of course, speak only for myself.
	Extraordinary rendition is a term of art not known to public international law, as the purpose is interrogation under torture. This amendment does not foreclose upon this practice as such in our domestic law, which as yet recognises the defence of lawful authority, justification or excuse to a charge of torture. One hopes that it may soon be amended, albeit that this process is proscribed by the United Nations Convention against Torture, to which as yet the Government have declined to accept the right of individual petition.
	The narrative of events as already spoken to in Committee and on Report, which is not for me to report or rehearse, has not been accepted by the DCA, the MoD, the Home Office or any other department of state as far as I am aware. So is it not a reasonable assumption that, in the wake of 9/11, this arrangement for extraordinary rendition was made between President Bush and the right honourable gentleman, our own Prime Minister, and that it was implemented by the intelligence services under the shield of joint national security? If not, how else is it that no department of state accepts cognisance of what we know is going on? Has not the time come to shift that shield, without disclosing sources, and to provide, as is proposed by this amendment or in some similar amendment, that the Secretary of State should be answerable to Parliament?
	It is now common ground, having read Hansard, that under the Chicago Convention, control of the aircraft is exercised by the Civil Aviation Authority on clearance for landing and take-off, and when the aircraft is grounded, it is subject to the provisions of the Chicago Convention. It is assumed that the Civil Aviation Authority, under the practice spoken to in Committee and on Report, is given directions. Who gives those directions? How is the clearance arranged? Who knows about what is going on? Those are questions that the Minister is in no position to answer. But we as ordinary people are entitled to ask them. If airports are cleared for this purpose, who gives the instructions? Who is it who knows? If no department of state accepts cognisance, there is no control but Parliament. It is assumed that under this amendment those instructions would be given by the Secretary of State, that passenger lists would be checked, and that the ultimate destination and the purpose of the flight would be verified. But nothing like that appears to happen today.
	The Joint Committee on Human Rights has this amendment and is working on extraordinary rendition. As yet, however, it has received no evidence or any information to dispel my anxiety. I cannot speak for anyone else. However, I can say that there is much more work to be done and it shall be done. The report, which may not be presented at the moment, will be available before the Bill, when returned to another place, receives attention. It will be for another place to consider whether this amendment qualifies as a connected purpose related to the control of the Civil Aviation Authority under the Chicago Convention. That is the matter which I would have touched upon the other day but I got it wrong.
	In conclusion, perhaps I may suggest in these exceptional circumstances that we borrow the concept that,
	"magnanimity in politics is not seldom the truest wisdom",
	and that the Minister, having recorded his objection, as inevitably he will do when the Question is put tonight, by concession allows the "Contents" to have it. That has happened once in my experience; I need not go into the details. I ask that to enable the report of the Joint Committee on Human Rights to be considered in one of the Houses of Parliament, having regard in particular to the provisions of Clause 4(c) of the amendment. I know that that is a tall request but I ask it with humility and sincerity.

Lord Dykes: My Lords, I strongly supported Amendment No. 22 tabled by the noble Baroness, Lady D'Souza, at Report stage on 8 March. Many speakers in this debate have thanked her for her initiative in launching this new clause at Third Reading. I shall be brief, because the hour is late. It is clear that the Minister must provide some strong answers to the many queries that have been raised and to the legal points raised by the noble and learned Lord, Lord Archer of Sandwell, who was formerly Solicitor-General in another place. I shall not make any further points tonight, because of the lateness of the hour, but I shall say that we know that the reality is that if one discretely asks any important, reputable journalists from the media—the press, radio or TV—in leading countries, particularly leading EU countries or America, about these practices and whether they go on, at the least they would say that they are pretty sure that they do, or otherwise they say that they are certain that they are going on. The Government must not be a party to illegal actions by the CIA or any other American entity of that kind. Therefore, we beg the Minister to give convincing answers tonight before this debate is concluded.

Lord Lamont of Lerwick: My Lords, I support the noble Baroness, Lady D'Souza, and I am grateful to her for bringing this matter forward again. I was not able to be present on the previous occasion when this was debated, although I read the Minister's reply. On that occasion, the Minister suggested that the issues could not be dealt with by an amendment because they went beyond the scope of the Bill and that we were bound by international conventions. However, as has been pointed out tonight, a state does not need to rely on any treaty in relation to its jurisdiction over foreign civil aircraft, whether on the ground or in the air. It has the right to investigate whether an unlawful activity is being carried out on the ground or in its airspace.
	I can, to some extent, anticipate what the Minister will say. We will be told that it is inappropriate to agree such a far-reaching amendment; that it is not to do with the content of the Bill; that it will be inappropriate; that it will sit uneasily in the Bill; and that it will probably be full of practical difficulties. Looking at this issue, which is of huge importance, even if the Minister does resort to those arguments, and even if I were convinced by them, I would still vote for the amendment because of the gravity and seriousness of the issue that has been raised. It cannot be denied that extraordinary rendition—to distinguish it from "rendition", which is the rather hideous distinction that is made—is happening and is being practised.
	The three cases that the noble and learned Lord, Lord Archer, quoted are the ones that I would have picked of the cases that are public knowledge. What is significant about those three cases is that the three governments of the territories where the people were captured were all conducting investigations into them. In the instance in Italy where an Egyptian was seized on the streets of Milan, as the noble and learned Lord said, warrants have been issued for the arrest of several CIA agents; in the case of the German who was captured in Macedonia and then taken to Afghanistan, the German Government are investigating that; and in the case of the Canadian, who was taken first to Jordan, then to Syria and then back to Canada with no charges being levied against him, the Canadian Government are conducting an investigation into that in which the United States Government have refused to participate.
	That very strongly suggests that extraordinary rendition is occurring. Perhaps the Minister would answer this one question for me. It is a rather an unfair question for his portfolio. But, if the transfer of those people was not for the purpose of torture, for what reason could it have been? Why take someone from Macedonia to Afghanistan or from Milan to Egypt in order to interrogate him? For what purpose other than exercising undue force on people could there be for these interrogations? The evidence that something undesirable is going on is strongly suggestive.
	I would not agree with the suggestion of the noble Lord, Lord Campbell, that perhaps there was some agreement between the President and the Prime Minister. I would not accuse the Government of that. But I feel that the Government are turning a blind eye. They are not asking enough questions about what is going on. There is plenty of evidence, as was said by the noble Lord, Lord Garden, of CIA flights in and out of this country. Putting that aside, there are the cases referred to by the noble and learned Lord, Lord Archer. The Government have to give a fuller answer and demonstrate that they are taking some precautions in order to ensure that this country is not being directly or indirectly involved in this.
	I accept the assurance of the Foreign Secretary that—

Lord Lamont of Lerwick: My Lords, there is strong suspicion that this is American practice. There is no reason to believe that the British Government have actively made an agreement with America. But I think that the Government are not asking questions and not seeking reassurance about what is going on in our territory with aircraft landing and over flying here.
	I would accept the assurance from the Foreign Secretary that Britain does not participate in rendition. The British Government do not transport people to where they are tortured. But I must say that I have more scepticism about what has been said by the American Secretary of State, Condoleezza Rice. Although she has said that the American Government do not transport people to be tortured, there seems to be some evidence that there is a difference between the internationally accepted definition of torture and that used in the United States. That also came out in the debates in the American Senate when Vice-President Cheney sought to persuade American senators that they should not vote for the McCain amendment. On the difference in what is classified internationally as torture and what some Americans authorities think of not as torture but acceptable force, but which would fall within normal international definitions of torture, I refer to such practices as water boarding, which to my astonishment has been defended in some very reputable American newspapers, on the grounds of, "If our troops are trained to resist these practices, we can use them against anyone".
	The whole idea of extraordinary rendition and the use of torture is appalling. Any association with it is damaging to this country. This country has been damaged by what has happened in Abu Ghraib and in Guantanamo. All these things have rolled into the issues that have arisen in the Iraq war. That is why it is important, for our own reputation and because it is right, that the Government should act positively and proactively to find out what is happening.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have participated in another debate on this issue which exercises us all greatly. The one jarring note to which I should like to respond is the suggestion of the noble Lord, Lord Garden, that the Government's arguments have changed during the course of proceedings on the Bill. They changed on one occasion. When the amendment was first tabled knowledge of the issue was very limited. My department, the Department of Transport, has limited responsibility for these issues and we gave the best reply we could to an amendment which was tabled the night before and to which I responded that afternoon. I subsequently indicated that the issue was different from the basis on which we were anxious about the matter. That is the only change in the Government's position. I freely admitted that when I addressed the House on Report. I want to emphasise that the Government are not changing their arguments again this evening but are seeking and maintaining total consistency in our position regarding the matter.
	Of course we all recognise that the concept of extraordinary rendition is unacceptable. I want to emphasise that although I recognise the various cases used today to illustrate the case that rendition may be occurring—it is for the House to judge that of course—none of them involves the United Kingdom directly. We made our position absolutely clear in ministerial Statements and in answers to Parliamentary Questions. Since this Government came to power, they have authorised the use of UK facilities for two prisoner transfers to the United States where the prisoners were subsequently tried and we declined to facilitate two other transfers.
	It has been widely reported that specific US-registered aircraft, allegedly linked to the CIA—and of course these issues arose again this evening—have used UK facilities for renditions. There is no compelling evidence to suggest that those aircraft were linked to unlawful activity while in or over flying the United Kingdom. If credible intelligence of serious illegal activity—the definition of "extraordinary rendition" that has informed this debate would be serious illegal activity—comes to light regarding an aircraft in flight, the Government can require the aircraft to land. Article 3bis of the Chicago convention allows states to require aircraft to land if there are reasonable grounds to conclude that the aircraft is being used for any purpose that is inconsistent with the aims of the convention.
	If the aircraft is on the ground, the control authorities—the police, Customs and immigration—already have a variety of powers to enter, take evidence and make arrests. For civil aircraft, the police could board an aircraft in the UK if they had reasonable suspicion that certain crimes were being committed within UK jurisdiction under UK law. My noble and learned friend Lord Archer pressed me on this point, and, with his usual diligence and accuracy, has done the researches necessary. I confirm that the police have power to enter premises to arrest for indictable and certain other offences under Section 17 of the Police and Criminal Evidence Act 1984. For this purpose, premises are defined as including any aircraft. That is in Section 23 of the Act. Because the police enjoy their usual powers of entry, the powers available would vary depending on the offence that is thought to have been committed. A justice of the peace may issue a search warrant to enter and search premises, including aircraft, where there are reasonable grounds for believing that an indictable offence has been committed.
	If someone is being transported for the purpose of being tortured, those who are exporting that person for that purpose are likely to be aiding and abetting the unlawful act of torture and so committing an indictable offence under Section 134 of the Criminal Justice Act 1988, so triggering the power to enter the premises that I have just described. So there is no doubt about the powers that the police enjoy to carry out necessary action on aircraft where there is reasonable suspicion of an offence being committed. If what was being committed is that which was described by noble Lords this evening, I have indicated that that would be a clear offence.

Lord Davies of Oldham: Yes, my Lords, but it would be sufficient that they were escorting an individual to such a potential fate, if there was a reasonable suspicion that that is what was being carried out. That is the point that I am trying to emphasise.
	The wider issue of the transportation by air of persons deprived of their liberty was addressed in the recent investigation and report by the secretary-general of the Council of Europe. Her Majesty's Government provided a full response to his inquiry, including information on the powers that we already have. That is available on the Council of Europe website. The secretary-general's report, issued on 1 March, acknowledged that the United Kingdom had provided full answers to all the questions put. The secretary-general plans to make proposals, including a review of the current international legal framework for air traffic and the adequacy of safeguards to ensure that aircraft are not used for purposes incompatible with internationally recognised human rights standards.
	Since Report, we have also had the opinion of the Venice Commission, the European commission for Democracy through Law, which was requested by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe. That opinion describes in some detail the general principles of civil aviation relevant to the allegations of rendition. No doubt, that will inform the further work of the Council of Europe. Of course, the UK will work closely with the Council of Europe on its proposed review. As we are here dealing with international law, the House will recognise that any change will be more appropriately made on a multilateral basis. We therefore prefer to wait for the proposals promised by the secretary-general and, if it appears that any changes to current arrangements are needed, to consider them in the appropriate international fora.
	I turn to the question of our ability to implement the new clause. I understand that this is a highly emotional topic. It is very important and I recognise the strength of feeling that enthuses all those who have spoken in this debate. But this is an amendment to this Bill. Therefore, I emphasise that it is important that we consider what the new clause would mean in the Bill in the real world. The simple practicalities of forcing a plane to land make the clause all but symbolic. A typical scenario for a jet aircraft might be that it was in United Kingdom airspace for up to two hours. If intelligence came to light indicating unlawful activity on that aircraft, it is unlikely that the intelligence services would be able to assess the quality of that intelligence for reliability and recommend action in such a short period.
	When the noble Baroness, Lady D'Souza, moved her amendment on Report, she said that an aircraft should be made to land even if it was "slightly suspected" that an unlawful rendition was taking place. As I said then, forcing an aircraft to land in British airspace is an act of such drama and difficulty that we would need a much higher threshold than that. To warrant such a dramatic intervention—to require an aircraft to land under some compulsion of force—would be a very serious act by this or any government. We would be liable to pay compensation if an error had been made and an aircraft had been forced down unjustifiably.
	I reiterate the Government's position on the allegations that have prompted the new clause, just for clarification. The noble Lord, Lord Lamont, who participated in our debate for the first time, also emphasised those allegations, and I shall respond to him. I am somewhat dismissive of the scenario outlined by the noble Lord, Lord Campbell of Alloway. This is not an area in which conjecture will do as the basis for our debate.
	The reality is this. We have made clear to the United States' authorities, including in recent months, that, first, we expect them to seek permission to render detainees via UK territory and airspace, including any overseas territories. Secondly, we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations. Thirdly—this is a point on which the noble Lord, Lord Lamont, pressed me—we have emphasised to the United States how we, the British Government, understand our obligations under the United Nations convention against torture and the European Convention on Human Rights. In turn, we are clear that the US would not render a detainee through UK territory or airspace, including overseas territories, without our permission.
	I recognise the opportunities that have been taken in this somewhat humble Bill to discuss such a significant matter. The opportunity has been seized by the noble Baroness, Lady D'Souza, and those who supported her, to air an issue about which we are all very concerned. It has disturbed Her Majesty's Government greatly during the past two months and rendered those of us speaking on their behalf just before Christmas in a very difficult position on something about which the Government knew very little at the time and was clearly having to carry out significant research. That is why answers to Parliamentary Questions and Statements have been delayed—not through any attempt at obstruction but simply because the research had to be conducted on an issue on which, it will be recognised, is not part and parcel of the normal operation of government and certainly not part and parcel of the normal operation of the humble Ministry for Transport.
	To conclude, however well intentioned, the clause would serve no practical purpose, as the necessary powers to require an aircraft to land and then to enter and search it to ascertain whether a crime had been committed already exist in our national law. Any changes to international law that may be identified as desirable—I have mentioned that discussions about that continue—would certainly be best dealt with through the appropriate international fora.
	We have had an important debate. I hope it will be recognised that I have responded to the issues that have been raised as fully and clearly as I can, although I have no doubt that many of them go far beyond the responsibilities of the department. I also hope it will be recognised that the new clause would not add to the Bill any powers that we do not already enjoy to deal with extraordinary rendition, which Members on both sides of the House regard as abhorrent.

Lord Adonis: My Lords, I beg to move that this Bill be now read a second time. Parliament has no more important duty than ensuring that children and vulnerable adults are safeguarded from avoidable harm. It is vital to ensure that individuals with a track record of criminal or otherwise abusive behaviour in respect of those in their care should not be given new positions of trust, whether in schools or in care settings. This Bill seeks to improve the vetting and barring regime to that end. I believe that it will be welcomed in all parts of the House.
	Staying safe is one of the five outcomes in the cross-government Every Child Matters programme, which seeks to ensure that safeguarding becomes everyone's business across the range of children's services. The Bill is part of that programme. Equally, the Bill will significantly improve safeguarding for adults in the most vulnerable situations, particularly in care homes and care services.
	The background to this Bill is only too painfully lodged in our memories. The tragic murders of Holly Wells and Jessica Chapman in Soham in 2002 brought to light serious weaknesses in the systems for protecting children from staff with a record of abuse and criminality. The Government commissioned Sir Michael Bichard to identify reforms to prevent any repetition of those serious failures. We accepted all the recommendations of the Bichard report in 2004, and a broad programme of work was immediately set in train to strengthen the safeguarding of vulnerable persons.
	A key element of that is the IMPACT programme, which is improving the ability of the police service to manage and share operational information. The IMPACT index went live in December 2005 and enables police forces to see which other forces may hold information on particular individuals. Because that information is held on local rather than national systems, it would not previously have been visible outside the force holding the record. This is a first step towards a full information-sharing capability that will allow police to search and retrieve information across all forces. A statutory code of practice on the management of police information came into effect last November. It sets out principles to ensure a nationally consistent approach to the way in which police information is managed.
	In respect of schools, the National College for School Leadership now has in place an online training programme for school governors and head teachers. Since last July, we have made available safer recruitment training materials to the head teachers and one nominated governor of every maintained school, together with two staff from every local authority in England. We will also be making the training package available to two members of staff from each independent school.
	The Bill specifically takes forward Recommendation 19 of the Bichard report. Recommendation 19 called for there to be a single, consistent national registration scheme for those working with children or vulnerable adults, with a single protocol and a single set of arrangements for the inclusion of names on two lists—one for the children's workforce and one for the vulnerable adults workforce—that would be capable of continuous updating and be available to all employers and potential employers, including parents. Careful consideration has been given on how best to implement Recommendation 19. A formal consultation on proposals was started last April. Further consultation on the policy detail was carried out between December last year and this January, in each case on specific proposals, which Sir Michael Bichard himself welcomed.
	On 19 January, my right honourable friend, the Secretary of State for Education and Skills, set out our further intentions on immediate steps to be taken leading up to this Bill. As an interim regime, we have tightened the existing system in a number of ways. Under regulations that will come into force in May, CRB checks will become mandatory for all newly appointed members of the school workforce. In respect of barring decisions, we will shortly introduce new regulations to ensure that any individual working with children who is convicted or cautioned for sex offences against children will be automatically entered on List 99 and barred from working in schools and other educational settings.
	In respect of the management of List 99, we have appointed a panel of experts, chaired by Sir Roger Singleton, the former head of Barnardo's, to advise the Secretary of State on her functions on the List 99 process. My right honourable friend has also asked Ofsted to conduct a survey of current vetting practices in schools and further education institutions to establish the robustness of current processes. That report will be published shortly. In addition, through the Children Act 2004, we have put in place a new safeguarding duty on a range of organisations. We are bringing better co-ordination to children's services through children's trusts and a joint inspection framework, and we are bringing together the key organisations at local level, including the local authority, health, criminal justice sectors, in local safeguarding children boards, which must be in place nationwide from next month.
	The Bill puts in place long-term reforms to the vetting and barring process, and four key principles underpin it. First, the interests of the child and the vulnerable adult are paramount. Whenever there is a judgment call about the suitability of an individual to work with them, we make it with a view, first and foremost, to safeguarding the welfare of the child or vulnerable adult.
	Secondly, our objective in this reform is to minimise the risk of harm to children and vulnerable adults from people employed to look after them, including volunteers. I stress the word "employed"; the Bill does not intrude into family relationships. There are of course other sources of harm to children and vulnerable adults, often within the family, but other systems are available to address them: for example, care proceedings to protect children from abusive parents and the tougher measures now in place to tackle domestic violence and abuse in relation to older people. Your Lordships have further strengthened protection for children in the amendments inserted by the House into the Children and Adoption Bill to provide for child safety risk assessments in child contact proceedings.
	The third principle underpinning the Bill is that responsibilities for safeguarding in the employment context are shared. The state has an important regulatory role, but in terms of specific decisions made in specific employment situations, employers have a prime duty, and parents and families also have responsibilities of vigilance.
	The fourth principle is that, subject to the paramount interests of the child and the vulnerable adult, decisions by the state to bar individuals from employment should be proportionate. The four principles that I have set out are reflected throughout the Bill and will be reflected in the guidance and regulations on its implementation that will follow.
	I have referred to the two lists. The first, to cover the children's workforce, integrates List 99 and the Protection of Children Act list; the second, covering those working with vulnerable adults, replaces the protection of vulnerable adults list. In respect of the maintenance of the two lists, responsibility, as set out in Clauses 1 and 2, will lie with the new Independent Barring Board, which will make all discretionary decisions on barring under the new regime. Schedule 1 covers the membership, operating powers and accountability of the IBB. The Government have today published a consultation document seeking views on the types of expertise that the IBB will require among its members and staff. I have sent a copy of the document to all noble Lords participating in the debate, and I would welcome views before we go into Committee.
	The IBB will work closely with the Criminal Records Bureau, which will perform the administrative functions to enable the scheme to operate. The IBB will be required to issue annual reports and to keep accounts that will be audited by the National Audit Office and laid before Parliament.
	The new scheme will offer three levels of protection, as set out in Clauses 5 to 20 and Schedule 3. The first level is where the bar applies and there is a requirement on employers to check barred status. It covers work in key settings such as schools or care homes, work that involves frequent and specified close contact with vulnerable groups in all adult health or social care or any children's settings, and key positions of authority. This is defined as "regulated activity" in the Bill and covers, for example, teachers and all other employees working in a school who have frequent contact with children. In those settings, barred people will not be allowed to work, and employers will be required to check whether recruits are barred.
	The second level of protection will involve a requirement to check barred status but with the discretion to employ, with appropriate safeguards put in place if necessary, should information of concern be secured by the employer such as, for example, from a full CRB disclosure or from a reference. The second level covers support work in general health, further education or social care settings. The Bill describes these more ancillary fields of employment as "controlled activity".
	The third level of protection is where there is the ability to check barred status but no requirement to do so. It covers work that involves specified close contact with children and vulnerable adults but where the employer is an individual making private family arrangements such as for nannies and care workers in the home. It also covers individuals working closely with vulnerable adults in a range of settings, including leisure facilities and supported housing. For the first time, parents will be able to check directly whether domestic employees are barred.
	Affirmative regulations made under paragraphs 1, 2, 6 and 7 of Schedule 2 will provide for convictions and cautions for the most serious offences committed by adults against children or vulnerable adults to result in an immediate automatic bar. Offences resulting in an immediate automatic bar without a right to make representations will be those where there can be no doubt that an offender would pose a manifest risk of harm to children if allowed to work with them. We are still considering precisely which offences would fall into that category. For the children's barred list, they will very likely include rape of a child under 13, sexual assault of a child under 13 and causing or inciting a child under 13 to engage in sexual activity. All of those are offences specified in the Sexual Offences Act 2003. For adults, they will likely include offences under the 2003 Act that are committed against an adult with a mental disorder.
	There will also be offences leading to an automatic bar but with a right of representation. Examples are likely to include offences relating to prostitution, pornography or trafficking. In those cases, the individual will have the opportunity to make representations to the IBB, where the individual claims that they do not present a risk to children or to vulnerable adults. The IBB in such cases will have discretion over whether to apply the bar. That will ensure that, if individuals have convictions or cautions for specified offences against vulnerable groups, a bar will cease to be imposed only if the IBB is absolutely convinced that on the evidence they do not pose a risk of harm to children or other vulnerable groups. I need hardly add that, in respect of those offences, there must necessarily be a very high threshold to pass.
	Where information other than a conviction or caution for a prescribed offence suggests that an individual's behaviour was inappropriate, that the individual endangered a vulnerable person or that they present a risk, the facts will be carefully considered by the Independent Barring Board. A decision will be made following any representations made by the individual. The Independent Barring Board will provide individuals with all the information that was considered as part of a barring decision, ensuring that the process is open and transparent. That will also guard against cases of mistaken identity.
	In addition to police information, the IBB will receive information from employers, from professional and regulatory bodies and from local authorities—for example, where a member of staff is dismissed in circumstances that indicate a risk of harm to children or to vulnerable adults. The IBB will exchange information with authorities such as the General Medical Council and the General Teaching Council. Monitoring those sources will enable the IBB to alert the relevant employer if information is received that requires the bar to be applied. That is a significant strengthening of the present scheme.
	In all cases of barring, there will be a right to apply for a review of the barring decision, following a prescribed period set out in Schedule 2(14). It will enable the bar to be lifted if there is no evidence of an ongoing risk after a defined period. The Bill provides for appeals on points of law to the Care Standards Tribunal, with a further right of appeal to the Court of Appeal.
	Let me stress that Ministers will not be engaged in discretionary decisions by the Independent Barring Board in any respect whatever. That will be a fundamental change from the existing system and one wholly desirable and in the public interest.
	We intend to publish comprehensive information about the barring process and guidance for employers on their responsibilities under the new scheme. We will also shortly be reissuing Working Together to Safeguard Children, which includes guidance about how to handle allegations across the children's workforce.
	A further important issue is the regulation of employees who come to this country from overseas. The Bill only partially covers employees from overseas. When such individuals have an employment record in this country, their UK employment will be covered by the IBB and CRB arrangements that I have set out. In respect of their overseas employment and any information available to the public authorities in their country of origin, my department has issued guidance, Child Protection: Preventing Unsuitable People from Working with Children in the Education Service. The guidance details the range of background checks that employers need to carry out. The guidance advises on the need to carry out checks as for UK-based teachers—for example, with references, qualifications, identity, as well as any appropriate police checks via embassies or local police forces.
	Although the CRB has access only to information held on specified UK data sources, the CRB and the Home Office are working with other countries on the sharing of criminal record information for employment vetting purposes in order to ensure the widest possible capture of relevant information for use by the vetting and barring scheme and by employers. My department is exploring with the CRB, the Recruitment and Employment Confederation and other stakeholders possible ways in which we could tighten further the arrangements for the vetting and recruitment of overseas staff. I will be able to update your Lordships at later stages of the Bill's progress.
	Safeguarding children and vulnerable adults is a serious responsibility and is a shared responsibility. The Bill provides for new criminal offences in Clauses 7 to 13 to ensure compliance with the scheme. A barred person will be committing an offence if they work or seek to work frequently and closely with the relevant groups in any setting. An employer will be committing an offence if they knowingly employ someone in a role where the bar applies, if they fail to make checks where checks are required or they continue to employ an individual who is not subject to monitoring. Those criminal offences will be backed by new sanctions, including fines or up to five years in prison.
	I hope that I have set out clearly the essential features of the new vetting and barring scheme. The scheme fully implements Recommendation 19 of the Bichard report. It takes forward the strengthening of safeguarding announced by the Secretary of State on 19 January. It ensures that safeguarding is the top priority. It will, I believe, give the public confidence that our system for vetting and barring unsuitable adults is as robust as the public would expect. On that basis, I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Adonis.)

Baroness Walmsley: My Lords, I, too, very much welcome the Bill, and I believe that the framework that it proposes will make children and vulnerable adults safer than they were before. If I express any concerns or propose any changes, they will be ones that will improve the Bill without interfering with the powers of the Independent Barring Board to set up and maintain an effective system to protect children; indeed, they will strengthen it. That is my main objective, in common with the Minister and other noble Lords.
	Safeguarding children requires much more than a barring list. It requires a whole child protection mindset, a culture of vigilance, a clear understanding of roles and expectations and appropriate training for all those who need it. I have tabled amendments to the Childcare Bill about that, but that Bill only covers very young children, whereas it is often older children on whom unscrupulous people prey.
	There is no absolute right to work with children or vulnerable people. The levels of vetting that can be expected for those wishing to do so should be rigorous and far beyond those relevant to other areas of employment. However, my main problem with the Bill is its lack of clarity, and we will need to work on the detail in Committee.
	There are also matters of principle. I, too, am particularly worried about the scope in Schedule 2(1) for automatic inclusion of people on the barred list without the right to representation. Details of the offences that will lead to that automatic inclusion will be in regulations that are not yet published. That makes proper parliamentary scrutiny impossible. I will therefore be proposing at a later stage a way of giving Parliament an opportunity to debate and amend the regulations. Even the affirmative resolution procedure is a blunt tool for legislative scrutiny. Parliamentarians may agree with some but not all of a list of prescribed offences, but they will be unable to amend it. Besides, this shows the Government's lack of trust in the IBB's ability to hear all the evidence and still avoid allowing unsuitable people to work with children. It is also in danger of contravening Article 6.1 of the European Convention on Human Rights. I would be interested to know what the Joint Committee on Human Rights thinks of this part of the Bill, since it is clear that case law has established that any procedures where civil rights are determined without ever hearing from the parties would be incompatible with the convention. I am not suggesting that people in this category are suitable to work with children, but we should have due process in all cases.
	In Schedule 2(3) on "Behaviour", there is also lack of clarity in the phrase "relevant conduct", which is not defined. Schedule 2(4) states that,
	"conduct of a sexual nature involving a child—
	would be defined as "relevant conduct" if—
	"it appears to IBB that the conduct is inappropriate".
	That leaves it unclear what and how conduct of a sexual nature involving a child or children would ever be acceptable. Indeed, I wonder whether we are back to the arguments that we had on the Sexual Offences Act 2003 about agony aunts and their sexual advice to young people. That Act throws a very wide net of criminality so that, for example, all sexual contact between under 16s is technically illegal. That is another reason why blanket bans often lead to unfair treatment.
	I raised with the Minister during the Second Reading of the Childcare Bill last week the issue of whether a person under 18 could be included on the new barred lists. There are a number of services, including those run by Barnardo's and the NSPCC, that help those children who display sexually harmful behaviour. In the past, it has been assumed that such children were at high risk of reoffending, but if they have received expert, targeted intervention that is no longer true. That is why such children are more appropriately dealt with by the welfare system than by the criminal justice system. However, until such time as that happens, it would be quite wrong for their troubled childhood behaviour to automatically lead them to be put on a barred list, with the adverse effect that might have on their future career.
	Today, I have had a reply from the Minister saying, in effect, that the list of offences is that in the Day Care and Childminding (Disqualification) (England) Regulations 2005—SI 2005/2296. He also says that the protection for very young offenders would be the fact that Ofsted will continue to be able to waiver disqualification in certain circumstances; I presume, for example, where the offender was very young at the time and does not present a current risk to children. However, I would like to explore the matter with the Minister, since I feel that it should be clear in the Bill, or people will not know where they are. I also think that there may be situations covered by the Bill in which Ofsted has no jurisdiction, so I do not see this as a full reassurance.
	Paragraph 5 of Schedule 2 refers to the possibility of future risk of harm to a child. It is unclear how that will be assessed, but I assume it will be on the basis of past behaviour, in which case I wonder why the person in question does not fall into the category of paragraph 3, which relates to behaviour. It is therefore hard for me to see why we need paragraph 4 at all. To bar someone from working with children on the basis of what they might do takes us into a difficult area and will inevitably raise concerns about inappropriate barrings.
	We need a better definition of all the thresholds at which barring decisions will be made and the factors that lead to them. It is crucial that they are clear. They must be set at the right level and we need to know what those levels are. There is a need for balance and proportionality. It is important to avoid mistakes, to protect the innocent from ill-founded allegations, to respect privacy and protect young people who make minor misdemeanours from being blighted in later life.
	One of the most difficult areas the IBB will have to consider is the "soft" area of evidence: intelligence, behaviour and risk of harm. How will the IBB assess what is known as non-conviction data? Indeed, there are other factors it might consider, such as matters arising from private law proceedings where there is evidence that children have been harmed; matters arising from inappropriate behaviour with vulnerable adults; matters arising from medical or social care intervention; and offences under a professional code of practice. How will the IBB deal with these, or is it even empowered to do so?
	In relation to "soft evidence" the police will need clear guidance as to what level of data they should retain and submit to the IBB and this should be consistent throughout the country. One of the problems emerged during the Bichard inquiry. It seems that the guidance issued by ACPO on retaining intelligence relating to non-conviction information made it difficult for police officers to determine whether to retain or delete information. Evidence submitted by the Police Federation to the inquiry stated that where there had been any doubt about whether soft information should be retained, officers erred on the side of caution and deleted it. However, following the Soham murders it is easy to see how the pendulum could swing too far the other way so that any allegation made about an individual could be retained. Information weeding is not a precise science, so I hope the Minister can reassure us, during his response, that the code of practice to which he referred in his opening speech is working fairly and effectively.
	I welcome the duty in Clause 30 and Schedule 2(2) for local authorities to refer appropriate people to the IBB if they fall within certain categories, are working with children or vulnerable adults and the harm test is satisfied. But harm is not defined in the Bill. I suggest we need a definition here and I will table an amendment saying that the threshold of significant harm in Section 31(9) and (10) of the Children Act 1989 is the one that should apply. If we do not have a clear definition, social services could get tied up in a lot of inappropriate referrals and we do not want that since it could lead to costly litigation. There is also a need to be clear about how frequently the information will be updated and how often rechecking will take place.
	One of the stated objectives of the Bill is tightening up and simplifying the system, but there are still to be two barring lists. While this is better than nine, we need to know about the relationship between the two. How do they interact? Given the evidence that abuse of children and vulnerable adults is a power crime and that the two have much in common, it is essential for consideration to be given to whether a person should be put on both lists if he qualifies to be put on one of them. I will be tabling an amendment to put a duty on the IBB to give consideration to this matter in every case.
	Fortunately, most of the people who do wonderful and worthwhile work with children and young people need never fall foul of any barring list. But it is worth considering the availability of some sort of accreditation for people who fall outside the regulated or controlled work categories, to enable them to show positively that they are the sort of people who are suitable to work with children if required. I have in mind something like the kitemark in the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.
	Speaking of the regulated and controlled categories of work, I, too, would like to ask why we need two categories at all. Surely everyone who works with children at any time would have an opportunity to abuse and should therefore be checked as to whether they appear on any barred list—and the simpler the process, the better.
	The IBB will have a very important job to do and its membership should include people with a wide spectrum of experience as well as knowledge of child protection. I refer to employment law, criminal law and the management of sex offenders, and I include those involved with probation, the police and multi-agency public protection arrangements, as well as legally qualified people. Can the Minister reassure us about that? He can be assured that we will respond to the document that we received from him today about it.
	Can the Minister also tell us how the board will interact with the CRB and the Home Office? Will it be entirely independent or will it be linked in some way? To whom will it report? That is not clear in the Bill. I presume that the Secretary of State referred to is the Secretary of State for Education and Skills, but perhaps the Minister could confirm that.
	This Bill is still more complex than I think it needs to be, so there is a need for a full communication process, since there will be huge consequences for people working in previously unregulated posts. This could particularly affect the voluntary and community sectors. People need to know what is meant by the two categories of "controlled" and "regulated" activity. They need to know where the dividing line is and what "frequently" and "occasionally" mean in the Bill. If people are not sure, they will protect their backs and carry out checks anyway, particularly in view of the criminal penalties for mistakes of omission. We do not want people checking inappropriately, because they can have their right to check taken away if they do so. Also, that would clog up the system.
	Just sending out information packs will not do. We need face-to-face briefings, plus a website, a helpline and information about the timescales for, as well as the details of, implementation. It is particularly important to have easily accessible information available to individual parents who employ someone to look after or teach their child. They need to know that they have a new right to check and they need to know how to go about it. Perhaps the Minister could also tell us what individual checks will cost.
	Finally, I will say a word about overseas workers. This is a very difficult area for employers, who have to rely on what they can get from abroad. It would be quite wrong to prevent someone working with children or vulnerable adults just because they came from a country that did not have the same rigorous system as we are currently trying to devise. In fact, care homes for elderly people rely on many workers from abroad. Therefore, I was glad to hear what the Minister said in his opening remarks about the Home Office's work with other countries.
	I wonder whether the Government have considered a probationary period for overseas staff, with an extra level of supervision until the authorities in this country have been satisfied. That would not be perfect, but it would be better than what we have now. Alternatively, there could be a mandatory duty for an employer to prove that they have taken steps to obtain criminal records or other relevant information from abroad if their employee is from there, although I do not underestimate the difficulty for employers of having to do that.
	I am excited about the possibility of a better system to protect the vulnerable in our society. I look forward to having the opportunity to work with the Minister and your Lordships to improve this basically sound Bill to ensure that its fine objectives are achieved without anyone being unfairly treated.

Baroness Thornton: My Lords, I am delighted that the Safeguarding Vulnerable Groups Bill has been brought before your Lordships' House and introduced so helpfully by the Minister.
	I have spoken about vetting, barring and lists at least two or three times in the past eight years during the passage of various Bills concerning children's safety. The Government are to be congratulated on the fact that the Bill is the product of a great deal of consultation. I welcome the fact that they have already embarked on consultation on the independent barring panel. The Bill before us has benefited from the amount of discussion that has taken place.
	The children's organisations with which I have an association, NCH and others, have broadly welcomed the Bill. Indeed, many have been clamouring for some time for coherence and clarity in this area. I am confident that with the customary thoughtfulness of the Minister and the expertise that resides in your Lordships' House we shall clarify that which needs clarification and improve the Bill before we pass it to another place.
	I broadly agree with the concerns raised by the NSPCC and Barnardo's in their helpful notes on the need for greater clarification about such matters as which offences would lead to automatic inclusion on the barred list; whether a person under the age of 18 can be included on the barred list; and how the two lists might work—an issue raised by several noble Lords. If someone is included on the vulnerable adults list, does that mean they are not included on the children's list? I am sure we shall have many discussions on this matter.
	I also agree with the concern of the Local Government Association about the funding, establishment and maintenance of the list. I recall a discussion in this House some years ago about the bringing together of all the different lists and about costs being a major barrier as well as complexity. I do not believe that this is a no-cost exercise.
	The major point I wish to raise relates to paragraphs 2(1)(e) and 2(4) of Schedule 3 to the Bill at page 42. The intention of the regulations seems to be to make it compulsory for people to be made the subject of criminal and other checks if they are engaged in moderating online activities which are aimed at children or are likely to be used by children.
	I understand that at present such checks are optional. First, I am not sure why in this context the protection should be extended only to children and why it does not extend to all vulnerable groups encompassed by the Bill. Secondly, while I entirely understand the sentiments which lie behind the apparent attempt to stiffen the laws in this area, I should like to query, or obtain clarification on, its intended scope. I am not expressing opposition to the sentiment which has led to these proposals, but I want to explore why they have been framed in the way they have, and what they might do.
	As noble Lords will be aware, online chat rooms, discussion forums, bulletin boards, blogging and social networking are hugely popular with children and young people. They give them an excellent opportunity to develop their writing skills, to express themselves and to form relationships with people all over the world. I take some comfort that my own daughter will use the lucidity that her blogging and other activities express, and hope that she will transfer those with positive effect to her A-levels.
	However, we are all too familiar with some of the tragic consequences which can befall the child if, in these sorts of virtual worlds, they have the terrible misfortune to encounter a sexual predator—typically an adult. Adult sexual predators are attracted to these environments precisely because they know that children go there in large numbers. They are looking for photographs or information, or both, which would render a child vulnerable to their manipulative skills. Elsewhere, in shorthand, this is known as "grooming". Some noble Lords will recall the attention we gave to this issue during the passage of the Sexual Offences Bill.
	In the main, sexual predators who have taken advantage of children in these types of virtual worlds have been other users rather than moderators, who have been charged with keeping the environment safe. However, there have certainly been some cases of that type. In the UK, most of the larger online discussion forums and chat areas employ professional moderation companies, where all the moderators have been made the subject of CRB checks. I confess that I am not sure whether the checks are standard ones or enhanced but, clearly, they ought to be enhanced. The BBC, Vodafone and many other household-name companies absolutely insist on moderation for their interactive areas. They do not doubt its value or importance. They ensure, for example, that a child does not publish to the world details of where they live, or their home or mobile phone numbers, and that they do not disclose intimate details about themselves or their family life. Neither would they allow compromising or illegal images of the child to be posted on the site.
	However, while the BBC, Vodafone and others insist on professional moderation of their services—on which we should congratulate them—many such sites rely on volunteers to do some or all of the moderation. The site itself may be run as part of a straightforwardly commercial venture. They may be a small number of paid or professional moderators, but many—perhaps all—might be volunteers. What effect would this Bill have on them?
	Some of these sites are, in effect, global. Some of the moderators, whether professional or volunteers, might be based in the UK, whereas others might be overseas. The company providing the service might be British or overseas. What happens in these mixed environments? I understand from reading Clause 6 that the Bill is not intended to catch private arrangements that individuals might make between themselves, but it would be hard to describe some of the global sites which claim membership of millions—or some of the UK sites with tens of thousands of members—as falling within that category. Yet those are precisely the sorts of numbers that some of these sites claim to have in membership. What level or type of consultation has there been around these provisions with the internet industry, companies that provide moderation services and their users?
	In this country, we have, by and large, a successful self-regulatory environment, where child safety issues are discussed and handled by a combination of the internet industry, children's organisations, the police and the Government—led by my honourable friend, Paul Goggins—all working together. So, for example, when in the other place my honourable friend Ms Judy Mallaber raised the downloading of child pornography, the Minister said:
	"The UK internet industry and the Internet Watch Foundation continue to lead the world in limiting access to illegal images. In April, this work will be further strengthened by the establishment of the new Child Exploitation and Online Protection Centre."
	He went on to say:
	"Eighteen months ago, no sites were blocked because the technology did not exist. BT has introduced the technology and now 80 per cent. of internet service providers use it. The question is how we achieve the 100 per cent. . . . I engage in regular discussions with the industry and I am determined that we will hit that 100 per cent. . . . through the voluntary route".—[Official Report, Commons, 13/2/06; col. 1130.]
	I would imagine that, under these circumstances of co-operation, there has been some discussion with all the interested parties. I raise this point, because I am aware that concerns have been expressed by some members of the Home Secretary's internet task force about compulsory checks and the precise scope of rules of this kind, particularly with regard to blogging and social networking.
	To conclude, the worry is that these measures might lead many sites to close down and young people would therefore lose the opportunity to participate in potentially creative and useful sites. The Bill proposes a directly interventionist stance. While I am certainly not opposed to that—indeed, I have spoken about these issues many times in your Lordships' House—I am surprised that the Government appear to feel that self-regulation has failed in this instance. I do not think we are quite at that point, and I would have thought that self-regulation ought to have been given the opportunity to work here, as it has done in other areas. Perhaps the Secretary of State might consider taking these powers as reserve powers, to be implemented only if a need were to arise. I hope that we can discuss this issue in the course of this excellent Bill's passage through your Lordships' House, and I look forward to working with colleagues on it.

Lord Laming: My Lords, I, too, welcome and support the main thrust of this important Bill but, like others who have already spoken, I do so with some caution. We must remember that the three lists currently in operation, in addition to that of the Criminal Record Bureau, were self-evidently designed to address the different needs of different services covering a different and wider range of employees and for different purposes. It is of course right that, as far as possible, those lists should be combined to make the information more accessible, but I suggest that that will be no small task, not least because across the country decisions are being made almost daily which will have to be properly recorded in those lists and properly tested.
	The lists could not have been combined during the years of paper-based systems, but now that we have the new technology available to us, it is possible. Nevertheless, I urge the Government to take the time to ensure that the new system is both reliable and efficient. Experience suggests that national computerised systems are often not without their problems. The system will have the potential to affect people's lives, for good or ill, in very important ways, so getting it right is essential. Speed should not be at the expense of efficiency and reliability. Detail is of such importance in these matters.
	Like other noble Lords, I am concerned about the necessity to have two separate lists: one for children and the other for vulnerable adults. If there must be two lists, can the Minister assure the House that there will be efficient links between the two? Otherwise, as has already been referred to, someone could be barred from working with under-18 year-olds but could be appointed to work with over-18 year-olds, some with severe disabilities. Will the Minister also assure the House that these lists will in due course cover the whole of the United Kingdom, and will he also address the points that have already been made about those who come to work in this country from other EU countries?
	I understand in some ways what the Minister meant when he twice referred to a shared responsibility in his opening address, but I take this opportunity to urge the Government to ensure that there is no doubt in future that the responsibility for the employment and the performance of staff rests squarely with the employing organisation. I say that because only the employer can assess the suitability of a candidate for any post. The employer must be accountable for the quality of service and the safety of its users. This, of course, applies to those who do not appear on any list, but there should be no ambiguity about where the responsibility lies for the safety and well-being of vulnerable people.
	Unless a person is barred, the appointment will very often be made on the basis of an assessment of risk. Of course I understand that there will be those who believe that once a person has a criminal record, they are ruled out from being appointed to any job in which they may come into contact with vulnerable people. This, in my view, is both unrealistic and unacceptable—unrealistic because there is no huge untapped reservoir of potential recruits for often low-paid and very demanding posts, and unacceptable because potential employees have rights. These decisions must be seen to be reasonable at all times. I will not detain your Lordships long at this time of the evening, but let me just mention a few examples from my experience.
	The form of application that we used had a section for convictions which made it clear to everyone that any and every conviction had to be recorded, and that failure to record a conviction might jeopardise the applicant's position. Yet, time after time, we received information from police checks which the applicant had not recorded. I recall an applicant leaving the section blank. When his criminal record was checked, it was found that he had a conviction for possessing cannabis. When challenged about this, he replied, "Oh, that. It happened while I was at university, but I have long put that behind me". Another criminal check on an applicant revealed that the person had a conviction for taking a vehicle and driving it away with no licence or insurance. When challenged, he said, "Oh, but that's a motoring offence. It's not relevant to this task". Another applicant had recorded an offence of assault, but the check revealed a conviction for grievous bodily harm—an altogether more serious matter. On further inquiry, however, it emerged that two youths had got into a fight, blood was shed by one, and the more serious offence was therefore the conviction. Another applicant recorded a conviction of unlawful sexual intercourse, but further inquiry revealed that, when he was 18, he got his younger girlfriend pregnant.
	Would barring apply to all these circumstances? I think not, bearing in mind the range of different tasks that are being considered and the different degrees of risk that will have to be taken into account in each circumstance. That is why I think it is essential that we in no way weaken our commitment to ensuring that the employer is responsible for ensuring that the staff who are employed are suitable to the task, and that the employer takes into account the nature of the post that is being advertised, the degree of contact with vulnerable people, the level of supervision, and the record of the applicant since the conviction. It is for the employer to take the decision and to justify that decision as it applies both to vulnerable people and to the rights of the applicant. It is important to protect vulnerable people, but it is also important that we do not undermine the enthusiasm of those who genuinely wish to help others. That, of course, includes volunteers.
	I also urge the Minister to emphasise the importance of ensuring that those organisations that supply agency staff must also be held accountable for the quality of staff whom they employ. Agency staff may move from post to post, almost on a daily basis, to provide cover for those who are absent for any reason. The supplying organisation, which of course charges a fee for its services, must be accountable for the staff on its books.
	In that context, I invite the Minister to outline the appeal mechanism, not least because we must recognise that in this work staff are often exposed to the danger of malicious allegations which can have a devastating impact on them and their families. I am sure that I need not dwell on that, but it adds emphasis to ensuring that the legislation must have proper safeguards which are built in for everyone, openness and transparency. In supporting the Bill, I hope that the Minister will reassure the House that there will be transparency, fairness and reasonableness for all concerned.

Lord Harris of Haringey: My Lords, I should like to add my thanks for the helpful and detailed introduction that we have had to this Bill from my noble friend. It is also a particular pleasure to follow the noble Lord, Lord Laming. If I remember correctly, we first encountered each other 24 years ago when I was a newly elected chairman of a social services committee. The noble Lord, I think, was president of the Association of Directors of Social Services. Since then our paths have crossed on a number of occasions.
	I also declare an interest as an adviser to the computer company, Anite, which has had responsibility for preparing the software underpinning the violent and sexual offenders register. I know that it has some issues in respect of how these new arrangements might operate. However, my remarks are nothing to do with any concerns that it may or may not have about the proposals.
	I start from the basis that in considering this legislation we should have regard to the UN Convention on the Rights of the Child. The preamble of that has made it clear that by reason of the physical and mental immaturity of a child, children need special safeguards and care, including appropriate legal protection, which is underpinned in Articles 3 and 19. I mention that because it is important to understand why we need to have in this legislation provisions which may undermine the human rights of some individuals who may wish to work with children and, for that matter, other vulnerable adults. But there is no right for individuals to work with vulnerable adults or children. It is something that people can seek to do, but because of the responsibility that governments, local authorities and organisations that provide care to those groups have, there must be an acceptance that the levels of vetting of such individuals must be higher than would be the case in other forms of employment.
	I am pleased therefore that the Bill seeks to simplify the various systems of checks and lists—the Criminal Records Bureau, List 99, the Protection of Children Act list and so on. The Bill specifies four categories of activity that will lead to inclusion on the barred list in some or all cases.
	The first category is those who have done something in the past which will qualify them for automatic inclusion. There is a second category where inclusion is subject to consideration of any representations that they may make, but the presumption is very much that they will be included on the lists. The third category, where the IBB will have discretion, relates to behaviour which has not led to some form of conviction or caution. The final category—again, there is discretion here for the IBB—is where there is perceived to be a risk of harm.
	The first two categories are fairly straightforward. I am sure there will be some debate on which categories of offence should be in the automatic group and which should be in those where there is some element of discretion in the light of representations. The House will be able to look at those matters in detail in Committee and I suspect consensus can be reached.
	The third category is also relatively straightforward. There is no presumption of barring, but the IBB has discretion and the person has to be given the opportunity to make representations if they are being considered for barring. The issue will revolve around a pattern, or examples, of previous behaviour which, though not having led to a conviction or caution, provides some substance enabling the IBB to look at the individual concerned. Again, I assume that there will be some debate in Committee about what requirements will be necessary for that and what criteria the IBB should operate.
	I want to say more about the fourth category, where there is believed to be a risk of harm. My noble friend Lord Adonis talked about a significant strengthening of the previous provisions in this Bill. I have a lot of sympathy with what the Government are seeking to do here and I have some understanding of the dilemmas which are faced. If I can go back those 24 years, to when I was a new chair of a social services committee, I remember several instances when successive directors of social services would come to inform me of a particular concern about individuals employed by the local authority. This was not because of some known behaviour and it certainly was not because of some previous conviction which had not come to light and which would have led to dismissal or some action being taken. Typically, a professional of longstanding experience who was supervising the individual concerned would say, "My professional experience tells me that the way in which that individual is relating to the child or the vulnerable adult in their care causes me concern. I cannot be more precise, but that is the sum total of my professional experience."
	Such cases happen. They are perhaps more frequent than your Lordships would necessarily assume and they are of course immensely difficult. I believe that where we take into account the UN Convention and everything else, we have a responsibility to try to resolve such matters. I know that the way in which my then director of social services resolved the matter was often rather crude and perhaps would not have stood up to too close a scrutiny in an employment tribunal. But it involved finding a way in which that individual was not put in a position of working closely with a child or vulnerable adult. Perhaps if that individual then left and applied for a job in a neighbouring authority and there was a request for a reference, some explanation or illustration might be given over the telephone. That would perhaps be more difficult today, given the requirements on the way in which one deals with employees and what can or cannot be said in references.
	Clause 27 tries to address precisely this issue. A regulated activity provider must provide the IBB with information in certain circumstances where the regulated activity provider,
	"thinks . . . that the harm test is satisfied".
	The harm test is that the individual concerned may, among other things,
	"attempt to harm a child or vulnerable adult".
	The key words are "may attempt", or think they "may attempt". Just to ensure that there are no problems:
	"No claim for damages shall lie in respect of any loss or damage suffered by any person in consequence of the provision of",
	such information. Perhaps it should do so, given that this is about something which it is thought might happen. For local authorities there is even the explicit statement in Clause 30(5) that,
	"it is immaterial whether there is a finding of fact in any proceedings".
	I start from the basis of believing that we need some way of capturing that professional feeling that people who have worked for a long time in a particular environment call upon when they say, "I am worried about this individual". However, I am conscious of the dangerous ground on which we tread in terms of the rights of the individual about which such statements are made. In the example I have talked about, the individual remained in employment, although perhaps not doing the job to which they were originally appointed. Further, my example did not rely on just one professional judgment. Not only was there the professional assessment of the staff supervising the individual concerned, but also the professional judgment of the director or assistant director of social services saying, "In this instance, I have confidence in the supervisor who is making this judgment and my other knowledge of the circumstances suggests that we should take this seriously". Under this legislation, in the circumstances of my example the local authority would be required to refer. I think that would be justified.
	But what is the IBB going to do with such information? The information essentially reflects someone's subjective view of what someone else might do in the future. The board will notify the individual concerned, who in turn will make representations. No doubt those representations will say, "I am shocked and horrified that this suggestion has been made. I have always worked with children and vulnerable adults and I would not dream of harming them under any circumstances". How are the members of the IBB to resolve the situation? I pity them in having to face such dilemmas. I am sure they will be expert professionals with lots of experience, but when faced with written statements and even talking to the individual concerned, it will be very difficult to make a judgment.
	I have given an example from the point of view of a local authority social services department. Other providers, such as small businesses, may have only a handful of employees. There may not be a second professional who can validate what is being said. Moreover, there is the danger of the malicious referral. If a former employee has made your life a misery, once they have departed, what could be easier than blighting their life for ever by making such a referral? I am sure that we will return to these issues during the forthcoming stages of the Bill. Can my noble friend on the Front Bench tell us about the process to be used by the IBB in considering such matters? How will it consider them? What will be taken into account? Can additional inquiries be made, and if so, what sort of inquiries would they be?
	It is also clear that this is not a read-across from previous legislation. The Protection of Children Act 1999 talks about "information", as does the Care Standards Act 2000, while the Education Act 2002 refers back to both earlier Acts. Those were about information, not what someone thought. I believe that professional judgment may well be something which should be captured in the interests of protecting children, but how that is done, how it can be set out in legislation and provided for in guidance, is going to be extraordinarily difficult. I hope that my noble friend can give us some indication on how the guidance is to be prepared.

Lord Northbourne: My Lords, I shall be fairly brief. To speak last in a debate on such a complex Bill is not easy, particularly if one was planning to propose a rather heterodox approach, out of line with those which have been advanced by other noble Lords, with all of whom I agree. I wish simply to make an additional point, but I believe it to be important.
	Of course the Children Act 1989 says that the child's welfare shall be the court's paramount consideration. Of course it should be the paramount consideration of all legislation to protect children. I fully support the principle enshrined in this Bill. We must protect children from abuse and from significant harm by those who work with them. I congratulate the Government on bringing the Bill forward, but we must also recognise that it is crucial to avoid frightening away adults from the caring professions looking after our children. We must also be fair to those adults. My concern is that if we are to protect the nation's children, we need enough good staff to provide that care.
	I am not comfortable with this Bill. I find it confusingly drafted and uncertain in meaning. I shall be helped by the letter received—only a few hours ago, unfortunately—from the noble Lord about the appointment of the board. It has also been helpful to hear what other noble Lords have said about the Bill. I understand it better now than I did, but before I came into the debate I wrote that the Bill seems to give the Secretary of State, through regulations and through the powers he has to appoint the barring board and the tribunal, the power effectively to terminate the career of any adult working with children. That is on the basis not of a court decision, but of suspicion or allegations, which cannot necessarily be verified.
	I recognise the delicacy of the situation. The noble Lord, Lord Harris, made an extremely important intervention that touches upon the point that I am making. The decision that the board makes cannot be challenged in the courts except on a point of law. I made a note that that might be an abuse of human rights, but it is not human rights that I am concerned about. I am concerned that the threat of this bar could have an unintended consequence for the recruitment and retention of well motivated staff.
	There is already an acute shortage of good quality and well trained professionals in social services, the health-visiting profession and residential care, to mention but three. The Government have important plans to extend caring services, including thousands of new children centres and thousands of new extended schools. Brilliant. Those are excellent plans, but they will all need additional staffing. Human resources are going to be needed. If a career in those services becomes too risky, staff shortages could result. If they did, the last case might well be worse than the first. More danger and harm might be created for children.
	I do not want to delay the House, so I am only going to touch on some of the aspects of the Bill that seem to me to need attention. Some have already been touched on by others.
	I am not happy about the no claim for damages clause. Not even in cases of negligence, malice or malpractice? Also, Clause 41 seems to conflict with Clause 2(6). In Clause 4 is the issue of appeals, but why only appeals on a point of law? Surely the most important issue in most such cases is false accusations. Those are a matter of fact, not of law. It is on false accusations that there is a need for the possibility of an appeal to the courts.
	Nearly every noble Lord who has spoken has mentioned Schedule 2 and the problem of "harm", which is not defined. I agree that it probably should be the same definition as the interpretation of "significant harm" in the Children Act 1989. If it is, let us say so. Any certainty that we can get in the definition of what we are talking about will increase the confidence that professionals can have about what they are allowed and not allowed to do. It will increase the uniformity of judgment across the country and make the list a great deal fairer and more effective.
	What do the Government mean by,
	"likely to endanger a child"
	or "risk of harm" or "relevant conduct" in paragraph 4 to Schedule 2? These are dangerously vague concepts. That vagueness represents a threat to professionals. What is the threshold of risk? As some noble Lords have said, Barnardo's and the NSPCC have drawn attention to the need for a much clearer definition of thresholds for barring. The NSPCC states:
	"The criteria and threshold against which people are barred must be at the appropriate level—neither too high nor too low. We are concerned that this has not been specifically set out on the face of the legislation. We would like to see disqualifying factors clearly laid out".
	I thoroughly endorse that comment.
	Finally, Clause 42 raises the important issue of families. We shall have to have another look at that. Perhaps I have read the measure wrongly, but it seems to me that a man who has, for example, sexually abused a child in the family could not be put on the list although it might be most appropriate that he should be.
	Without compromising the protection of children, what are the Government going to do to protect professional adults who work with them?

Baroness Sharp of Guildford: My Lords, I too thank the Minister for introducing the Bill and presenting it with a clarity that explained some issues about which I had been uncertain. However, the debate has also shown the number of difficulties that we shall face as we examine the Bill in detail.
	There is, indeed, much to be welcomed. The Soham murders showed up the inconsistencies of the present system, with different authorities using different checks, and perhaps above all the chronic failure of the systems in place to transfer information across county or police boundaries. It is good that the Bill will bring together for the first time all the information, so that the CRB and List 99 will be amalgamated into one database, provided that we can establish that database satisfactorily. I refer also to the establishment of the online facility for checking combined with continuous monitoring, which means that up-to-date information will be easily and quickly available as compared with the current six-week wait for CRB checks.
	It is also good that, where discretion is required for decisions, it is now being transferred from the Secretary of State to an independent board. I think that all of us welcome that shift of responsibility. Such decisions are not appropriate for politicians. I dispute the point that, I think, the noble Lord, Lord Northbourne, made about the fact that the Secretary of State would appoint the board. The board will be genuinely independent. We welcome that.
	We also welcome the expanded coverage from schools and care homes to domestic employers of nannies, childminders and so forth. However, in welcoming that provision, we should be very aware of the need to raise awareness so that those who need access to the system know about it and can get it.
	It is also good to have vulnerable adults included alongside children. The abuse of vulnerable adults is something that we know much less about than the abuse of children. The noble Lord, Lord Rix, spoke for some time on that matter. It is good that the profile of vulnerable adults has been raised.
	In this Bill, the devil is surely in the detail, and a number of general issues seem to have come forward time and time again in our discussions. A central one is the question of the clarity of definitions, which the noble Lords, Lord Laming, Lord Harris and Lord Northbourne, all raised. If we are to have the four categories of barring that the noble Lord, Lord Harris, mentioned, it is essential to know where the lines are drawn. There is no definition of harm in the Bill. All the definitions and the whole question of the risk of harm—what sort of behaviour will endanger children—are to be left to guidance. It is to be prescribed in guidance from the Secretary of State, and decisions will then be taken by the Independent Barring Board. What that decision-making process will be is very unclear, yet the decisions taken will be absolutely crucial.
	Allied with that is the issue of the rights of appeal. The noble Lord, Lord Northbourne, said that decisions could not be challenged in court except on points of law. Yet someone's whole career can be put in jeopardy in such circumstances, as the noble Lord, Lord Harris, pointed out. Surely, under the European Convention on Human Rights, there should be the right of appeal against the automatic barring list and, for that matter, decisions made by the IBB other than just on points of law. Surely, there must be the right on occasion to challenge the facts. So, we need clarity on precisely who is and is not included in the barred lists.
	A second area where we need clarity of definition is in distinguishing between regulated and controlled activity. The Bill states that anyone on the barred list is not allowed to work in regulated activity yet can work in a controlled activity, subject to safeguards and, again, following guidance from the Secretary of State. The distinction between them is whether the activity is to be carried out regularly and frequently; if so, it is a regulated activity whereas, if it is only occasional, Clause 8(7) makes it clear that it is not an offence to engage in regulated activity without being subject to monitoring—for example, parents helping in classrooms. Yet still no definitions or criteria are included in the Bill. How often is "frequently", and how seldom is "occasionally"? What distinction is to be drawn, and how can parents or employers—or the general public, for that matter—know whether an adult with whom their children are in contact has been vetted or should, indeed, be subject to vetting procedures? Why, for example, do we insist that school governors are subject to such vetting, while a parent who comes to help in the classroom is not? The distinctions are vital, yet there is no clarity in them.
	A linked point is the crossover between children and vulnerable adults. The bar applies to all posts in schools and to the provision of services to children or in care homes but only where the person concerned comes into close contact with children or vulnerable adults, such as in day centres or hospitals. Surely, the criteria ought to be whether the individual concerned has unsupervised contact with children or vulnerable adults. There is the issue of canteen and cleaning staff in schools and hospitals. Often, such staff are likely to come into contact with vulnerable adults and children for substantial, unsupervised periods. Surely they need to be vetted in the same way. There are real difficulties in those circumstances.
	Likewise, where a post is not a regulated one that carries the automatic exclusion of anyone who is on the barred list but is a controlled post that allows those on the list to fill the post subject to monitoring and supervision and is subject to disclosure, the vetting and barring scheme policy briefing pack suggests that employers need to "think carefully" about the level of access to children or vulnerable adults that the post gives and whether additional safeguards are necessary. What does "think carefully" mean? Does it mean producing a written risk assessment, which arguably is what one wants in the circumstances?
	Then there is the issue raised by the noble Lord, Lord Rix, of vulnerable adults who pay directly for their services via the independent living allowance; that is, recipients of services that are not classed as a regulated activity. Such people are often alone for long periods with those whom they engage and are very dependent on them. Would it not be sensible for such people to be able to access secure online information about those whom they engage, just as people who employ nannies or music teachers should do? Where they are not in a position to do so, those who act as their trustees or agents should be able to do so.
	All those issues arise from the lack of clarity in definitions, the vagueness of the language concerned and the need to look always to the guidance. The issue raised by the noble Baroness, Lady Thornton, was interesting and different, and the noble Lord, Lord Northbourne, also mentioned the potential disincentive to volunteers of the procedures in the Bill. As the noble Lord, Lord Northbourne, asked, are we in danger of frightening away those who are prepared to go into the caring professions, when we are desperately short of such people? The noble Baroness, Lady Thornton, spoke about those who moderated internet chat rooms and the responsibility that they had for the material that went into them. How far will the burdens placed on moderators frighten them away? In many senses, it is the thin edge of a much thicker wedge. It is extremely difficult to find people who are prepared to run Brownie and Scout groups because of the burdens of the bureaucracy that we are placing on them.
	The Local Government Association has been much concerned with costs. How much will the system cost to set up? The noble Lord, Lord Laming, suggested that we might be a little sceptical about how easy it was to set up such a substantial database and how well it would work. The example of the Child Support Agency does not make one optimistic about how such a database might work; one hopes that it will work very much better. Who pays? The explanatory memorandum suggests that, once the integrated database is established, charges via the Criminal Records Bureau might rise considerably, although there will be online consultation. It says that the online consultation will be free. Will an employer be satisfied with just online consultation, or is more required? Do you require the information to be in writing? I would have expected so. If there is to be no charge, who will meet the costs of running the database? If it is online, how will access be regulated? It will contain a lot of confidential information about individuals, including, it has to be said, a lot of information that my noble friend Lady Walmsley described as "soft information". How can we prevent an individual posing as a potential employer and obtaining confidential information about individuals on the database?
	The LGA is also worried about litigation. As the noble Lord, Lord Harris, said, given all that information about individuals, if the individual is to sue those who have provided the information—if they know about it and if there is litigation in relation to the list—who pays? Who is to test the veracity of the data? Is it to be the Independent Barring Board? What about allegations of sexual harassment against teachers? How can we prevent such vexatious complaints? Do the school governing body or the police investigate them before passing them on? How does the individual clear his name if it is wrongly placed on the list? All those issues are unclear. I can see that the GLA was and is undoubtedly worried about who will meet the costs of litigation.
	I conclude with a general welcome for the Bill's broad aims, but there are problems that we will have to tease out in Committee.

Baroness Morris of Bolton: My Lords, I too would like to thank the Minister for introducing the Bill so clearly to your Lordships' House. The provisions it makes are long awaited and very much welcomed by us on these Benches. I have listened with great interest to all noble Lords' contributions to today's Second Reading debate. The contribution of the noble Lord, Lord Laming, was as ever a comprehensive and sensitive appraisal of this challenging issue; and who could disagree with the noble Lord, Lord Northbourne, about the danger of scaring away good people and well-motivated staff from working with children and vulnerable adults?
	Our children's safety is precious to us. Events have unfolded in the past few years which have caused great alarm to parents of young children and to the children of not-so-young parents. The Bill brings in measures that have been promised since the publication of the Bichard report in 2004. Those provisions cannot be implemented soon enough. This is rightly an ambitious Bill and contributions from all noble Lords have pointed to the fact that we all want the provisions of the Bill to succeed. But we need to get those provisions right. The noble Baroness, Lady Thornton, and the noble Lord, Lord Harris of Haringey, both spoke of the criteria under which an individual may be included on the barred list. I too was surprised—as many noble Lords have mentioned—and concerned to see that those criteria are not in the Bill. What is more, under Schedule 2, those criteria can be set by the Secretary of State, and it is the Secretary of State who makes the final decision as to whether someone is to be included on the list.
	There are some provisions for appeal, but my concerns echo those of my noble friend Lady Buscombe. Once an individual is included on the most stringent list, he or she will have no process of appeal. The rhetoric surrounding the Bill suggests that responsibility is being shared out among experienced professionals. But is the reality that the Secretary of State remains firmly in the driving seat? I am reminded of the comments of the noble Baroness, Lady Walmsley, in the Second Reading debate on the Childcare Bill, which she mentioned again today. She asked what would happen if a 17-year-old boy had intercourse with an underage girl, that was consensual, but that led to him being placed on the register of sex offenders, even though they went on to form a solid relationship. Would he be included on the barred list for ever? As the law presently stands a judge would have a discretionary power to disqualify him from working with children.
	I read with interest the Minister's letter to the noble Baroness, Lady Walmsley. I, too, was surprised to see that Ofsted has the power to waive a disqualification; I think that others would also be surprised. Will the Minister say whether Ofsted will retain its powers under the Bill?
	Of course, the most pressing concern is the vulnerable groups that we are seeking to protect—the people who stand to lose the most and who can defend themselves the least if the system fails them. Under Clause 14, it is possible for barred individuals to work in prisons and probation centres, yet we are all only too aware of the mental problems and vulnerability of many of our prisoners—not least the many who suffer learning disabilities, whose plight the noble Lord, Lord Rix, so graphically outlined.
	Even though our pressing concern is for vulnerable groups, we must be vigilant about and concerned for the rights of those who may find themselves wrongly included on the list. As the right reverend Prelate the Bishop of Peterborough so rightly said, we must also be watchful that we do not foster a culture of suspicion or stifle the spontaneity of ordinary, everyday life.
	I am reminded of an episode involving my honourable friend in another place, Tim Loughton. He is president of a local animal charity, which was proposing to hold a Santa's grotto, with the committee dressing up as elves to help Father Christmas. Of course, my honourable friend jumped at the chance to become a Christmas elf for the day—I am sure that noble Lords would have jumped at the chance to see that sight. But when it came to it, that good-natured participation was stifled by the need for a CRB check.
	I accept that in some situations you can only regret the fact that life is not what it used to be, but that anecdote raises a serious point. We must not stifle everyday life in the pursuit of total control. As we have heard, volunteers are a rare and valued commodity, especially for charities, and we must be wary of discouraging their generosity. The noble Baroness, Lady Sharp of Guildford, mentioned just one of those difficulties—finding people to run Scout and Brownie packs.
	We face a challenge to get the balance right. This brings me on to the technical side of things. The computer schemes will hold very sensitive material. Noble Lords will remember as well as I do the string of fiascos surrounding government computer systems. The CSA system will not work fully for two years. The council tax revaluation system has cost upwards of £10 million to install and is now being cast aside. Also, we heard yesterday the sorry tale of farmers being denied much-needed income because, we understand, the systems in the Rural Payments Agency cannot cope with the complexity of the single payment scheme. I could go on.
	Across the board, this Government's record with computer systems leaves much to be desired. The system that we are discussing in this Bill is already well behind schedule and has already cost £54 million. In light of that, I wonder what reassurances the Minster can give to show that this system will be robust. Without an efficient computer system, the provisions of the Bill will be severely compromised.
	There is a fine line to be drawn not only in designing and creating these lists, but in preserving and updating them. This is a two-tiered issue. First, the lists need to be solid, robust and efficient. Secondly, we need to be mindful of the way in which the list is used. We must make it a priority that the list is not a substitute for communication between professionals, parents and schools. These lists will only be as effective as the organisations that use them. They are a starting block from which a strengthened attitude to child protection can spring.
	One of our major concerns is that the list will be terribly efficient and well used but only in some areas of the country. I repeat the concerns of my noble friend Lady Buscombe in asking how comprehensive this list will be. Will it link up to Scotland, Wales and Northern Ireland? There was a recent case of a Sussex paedophile who was arrested for grooming a young girl in Northern Ireland. Will it link up to other countries with other such lists? The Minister outlined a number of checks that will take place. Those appear cumbersome, and I agree with my noble friend Lady Buscombe that this will challenge the system.
	I come to another issue that the noble Baroness, Lady Buscombe, highlighted, and on which the noble Lord, Lord Rix, spoke so strongly, which is the need to have two lists at all. In the face of the potential loopholes that I have mentioned, I wonder how well the lists will "talk" to each other.
	There is evidence that some who abuse children will go on to abuse adults. The statistics from the Ann Craft Trust quoted by my noble friend support that. They show that there is a cycle of abuse not just from abuser to abuser, but a cycle which leads those who abuse to seek new types of victim.
	Noble Lords will agree that looked-after children are among the most vulnerable in our society. The statistics from the National Children's Bureau family summit in 2003 showed that looked-after children suffer from a high rate of mental health problems: 45 per cent of five to 17-year olds were assessed as having at least one psychiatric disorder.
	Foster carers play a huge and essential role in the well-being of some of our most disadvantaged children. In 1998 the House of Commons Health Committee said that their dedication and commitment should be saluted. The noble Lord, Lord Laming, the noble Baroness, Lady Walmsley, and I have often referred to them in your Lordships' House as heroes. It goes without saying that the vast majority do a truly wonderful job. But there is a severe shortage of foster carers. When they offer their services they are welcomed with open arms. But I wonder how the organisations that organise fostering will manage to cope with the pressure of vetting every single applicant for foster parenting without extra help.
	Will the Minister indicate what kind of support will be offered to those hard-pushed organisations, and other organisations that rely on good will to implement the essential requirements of this legislation? I wonder, too, about the required checks on those who wish to visit vulnerable people, say, for example, in care homes. Let us say for argument's sake that they are a distant cousin and wish to take their relative out for a walk or out for a day. Will they need to be CRB checked? At what point does a relation become so distant or a friend so old that they are no longer considered safe? These are difficult, but necessary questions.
	While keeping at the front of our minds that it is those who are on the receiving end of abuse that we are protecting, we need also to consider that once upon a time many of those who now commit abuse were abused themselves. I bring that to the attention of your Lordships because we must be aware of every part of the challenge that we face. The Minister mentioned wider safeguarding measures, which we debated in your Lordships' House a few months ago.
	The Bill is brought to our House in a spirit of care and fairness. It is our job to present reasonable, effective legislation that can be implemented efficiently. We will work hard to ensure that it sets up a workable framework of protection and reassurance.

Lord Adonis: My Lords, I am immensely grateful to all noble Lords who have spoken in such a constructive spirit to help us address the important and complex issues that are raised in the Bill. I do not know about the Christmas elves mentioned by the noble Baroness, but as we start knocking on towards midnight, I assure the House that this Prince Charming is slightly worried about whether he is engaging in a regulated activity, which might need the new IBB's clearance if it carries on for a significant length of time.
	I shall not seek to address many of the very detailed definitional points that we shall, rightly, get into in Committee, except to say that I have taken careful note of all the points raised and will seek to address them all as we approach Committee. On some of the broad definitional issues regarding "frequent", "infrequent", "harm", and so on, it may be useful if I circulate noble Lords with the Government's interpretation before we go into Committee. I have substantial notes here, and if I were to do that before the Committee stage, it will give us a more agreed basis on which to discuss these important issues in Committee.
	As regards the broad principles underlying the Bill, I accept the points made by the right reverend Prelate the Bishop of Peterborough, the noble Baroness, Lady Walmsley, and my noble friend Lord Harris, that no individuals should have the right to work with children: it is a privilege. Individuals should be able to give full assurances of their good conduct and safety in so doing. I take that to apply in full measure to the vulnerable adults whom the noble Lord, Lord Rix, rightly highlighted in his discussions. I also agree with the right reverend Prelate about the need for rigorous interview and monitoring arrangements. None of the provisions in the Bill is a substitute for the proper role of employers and the vigilance which they have to observe, not just in the process of recruitment, but on an ongoing basis in exercising their duties as employers. I stress to the noble Lord, Lord Laming, that nothing I said about the considerable duties of the state, which we are enhancing in the Bill, and the continuing obligations of users of services to be vigilant, reduces in any way the responsibilities of employers which are paramount. They are set out at great length in the Bill and will be in subsequent guidance.
	I shall address such issues as the operation of the new IBB, appeal rights and so on in Committee. We have thought through the implications of the regime we are putting in place. I stress that the regime involves far greater transparency and enhanced due process than is available at present. For historical reasons, decisions of an extraordinary discretionary kind, with few rights of appeal in the case of many of the lists and barring arrangements, are in place. We believe that these provisions will enhance them considerably. We have to get the balance right between providing for due process and for our obligations under treaties and the Human Rights Act and, at the same time, not discouraging people from coming forward with legitimate concerns, and for action to be taken swiftly.
	For example, with regard to offences which would involve an automatic bar with no right for representation—an issue raised by several noble Lords—I stress that it will be a significantly shorter list than currently applies in the case of List 99 where there are 43 prescribed offences for which automatic entry on the list takes place and there is no right of appeal. In deference to our duties under the Human Rights Act, and with a proper sense of proportionality, we intend to have a shorter list than currently applies under the List 99 arrangements and to ensure that representations can be made. Taking up the point raised by the noble Lord, Lord Northbourne, that is a kind of appeal. In what to any reasonable person would seem a perfectly fair case for an automatic bar, the new regime will give individuals the right of representation. We also intend to ensure that there are rights for barring decisions to be reviewed. On the point raised by the noble Baroness, Lady Walmsley, and other noble Lords, we are considering the periods for which barring applies. It could apply differentially for older adults as opposed to those under the age of 25. Where young people acquire offences for conduct in their teenage years, but which on a reasonable assessment of their progress since it would be right to reassess, that reassessment can take place in a shorter period than would apply to those who are older.
	We have given a good deal of thought to all the issues raised. I hope that in Committee I shall be able to assure noble Lords that the concerns are met. I accept that we may need to be tighter with regard to some of the definitions. I am ready to give further indications of the guidance which the Secretary of State will be minded to bring forward in these areas.
	Money, as ever, forms a large part of our proceedings. The DfES and the Department of Health will provide upfront investment of nearly £17 million in 2007-8 for the setting up of the new centralised vetting and barring processes. The annual operating costs of the new scheme are expected to be in the range of £16 million a year over the first five years of the scheme starting in 2008-9. That is additional to the cost of the existing CRB disclosure and related processes which are about £83 million a year. CRB standard and enhanced disclosures currently cost £29 and £34 respectively. From 1 April, they will rise to £31 and £36. The costs will be containable.
	Several noble Lords referred to the composition of the IBB, which will be absolutely critical to the effective performance of its functions; hence the consultation paper which my right honourable friend released today, on which I will seek the views of noble Lords in Committee. It is clear that we expect the right balance of expertise in the protection of children and vulnerable adults to be represented in its membership. We have in mind a membership of around 10. All of these are likely to be full-time appointments. The case made by the noble Baroness, Lady Buscombe, for members who have appropriate legal qualifications is well made. She asks whether it may be appropriate for secondment to take place to secure expertise. We are prepared to see secondments take place as appropriate.
	We have experience of establishing such a body, because we have already established the interim expert panel—following my right honourable friend's Statement of 19 January—which now advises her on List 99 cases until this set of arrangements is in operation. My right honourable friend announced a panel at the beginning of this month, with high-quality representation from the sectors of child protection, the police, education—including further education—prison and probation, parents, child and adult psychiatry and children's social care.
	A great deal depends on the quality and processes established by the independent barring board when it is operational. I accept the points made by my noble friend Lord Harris—there are going to be some important and difficult procedural issues that we will need to grapple with as it sets about its work. Of course, we are not foreign to this territory. We have set up large numbers of review decision bodies on immigration, special educational needs and a whole range of activity involving difficult and often extremely vexing decisions about individuals, having to take information from a wide variety of sources. We do not see the IBB as different in that respect. With high-quality membership and good staff, it will be able to establish appropriate procedures.
	The issue was repeatedly raised of whether there should be one list for both children and vulnerable adults in place of the proposed two. It would be disproportionate for a person who has been barred from working with vulnerable adults—due to, for example, financial fraud—to be barred from working in all positions with children; one can go down the list of potential cases and see that there are distinct issues between the two groups. Although it is therefore appropriate to have two lists, where there is evidence of a risk to both vulnerable groups, the individual will be considered, as a matter of course, for inclusion in both lists. The independent barring board will consider this on a case-by-case basis. The two lists will also be aligned. The same processes will apply for both lists; they will both involve consideration of criminal records and information flows from professional and regulatory bodies, employers and local authorities. The broad criteria of risk and appeals processes will apply to both lists. There will be a high degree of co-ordination between them.
	That also applies to the issue of alignment between Scotland, Wales and Northern Ireland, which was raised. The Bill will apply to England and Wales, but we will ensure that the Scottish system, which the Scottish Executive is intending to introduce to its own legislation, is closely aligned. There will be mutual recognition of barring across the United Kingdom, to ensure that proper and robust systems are in place. The Bill provides for the Secretary of State to specify that a list maintained in Scotland and Northern Ireland corresponds to the barred lists in England and Wales. A person banned in Scotland and Northern Ireland will automatically be banned in England and Wales so that we do not find individuals slipping through the cracks between the two, as it were.
	The noble Baroness, Lady Morris, rightly said that there are going to be significant issues to address on some of the arrangements and thresholds for barring in the schedules. We accept that, although I do not believe that we will find this unduly problematic when we come to definitions. I stress that the Secretary of State will not be engaged in the making of decisions on any individual whatever. The Secretary of State's sole role would be in guidance underpinning legislation. Ministers will play no part whatever in individual cases. That will be the responsibility of the IBB itself.
	The noble Lord, Lord Rix, raised the difficult area of how to draw the line on levels of protection in respect of elderly people and the services that they consume. I expect we will debate this fully in Committee. He also raised the question of indirect payments, which is a difficult case. The purpose of moving to direct payments was to give individuals more choice and control over their own lives. We have to be careful not to so regulate that choice, and their capacity to manage risk, that they do not exercise those choices in the first place. I think that the noble Lord will fully understand the difficult balance that we have to strike in this area. We will seek to ensure that the risks are effectively managed. There will be appropriate guidance to individuals—which, of course, they may find hard to access—and to local authorities and others who advise them as they set up their direct payment schemes and, in due course, the individual budget proposals that we are putting in place. I hope that we can strike an appropriate balance without so over-regulating the system that we deny the choice that we are seeking to promote.
	The noble Baroness, Lady Walmsley, asked about decision-making processes inside the independent barring board. It will be for the IBB to determine its own decision-making processes, but, as with any body of this kind, we would expect it to be fair, efficient and robust. It will be subject to challenge in the courts if it fails to satisfy the appropriate criteria of procedural fairness. If that were to happen, the IBB would rapidly fall into disrepute and find its cases being challenged. We expect it to establish high standards. Of course it will need to consider legal advice and the cost implications of options for its decision-making processes.
	Many noble Lords mentioned the efficiency of the CRB. Perhaps the CRB's improvement has been so rapid that it has overtaken some of your Lordships in the improvements that it has made. The figures I have show that, after what was undoubtedly a very difficult start, it has made substantial improvements in recent years, so much so that in its annualised performance for the year to February 2006, it is now providing 84.4 per cent of enhanced disclosures within four weeks, not six weeks as was mentioned in the debate. It is now meeting its requirement for 93 per cent of standard disclosures to be issued within two weeks, and the most recent data for the provision of enhanced disclosures within four weeks are improved on the performance in the previous year. The CRB has been demonstrating great efficiency in its work and is building great confidence in the sectors with which it deals. I hope that that will carry forward into the new arrangements.
	On the issue of autobars without representation, List 99 at the moment automatically includes all individuals convicted of any one of 43 offences against children under the age of 16. The Bill retains a similar provision to bar automatically some offenders, but it will be a smaller number than is currently the case. At the moment, we are carefully considering where to draw the line between offences that are subject to automatic bars without representation and those where there will be a right of representation. I intend to give the House more details when we are in Committee.
	My noble friend Lord Harris raised a point about the risk of harm. He asked whether the IBB can conduct its own inquiries after referrals and how it will assess harm. We are clear that the legislation sets out the circumstances that should be met before employers, local authorities and professional regulatory bodies refer information to the scheme. We will also be encouraging domestic and small employers to refer information to statutory bodies such as the police or local authorities that can investigate allegations before they are referred to the scheme so that they come with a judgment made on the status of the allegations. However, on the point raised by the noble Lord about whether the IBB will be able to conduct its own inquiries after a reference, the answer is that it will be able to do so as it feels appropriate.
	The issue of checks on overseas workers was raised repeatedly in the debate. I dealt with it in my opening remarks, but I should stress that we are seeking to enhance those provisions. The CRB currently has an overseas information inquiry service that provides information on the systems of disclosure in operation in 21 countries and how an individual can obtain his or her criminal record or certificate of good conduct from the country in question.
	The current service is provided by a faxback service, although all the details will be available on the CRB website from 10 April, which will make it much more accessible to employers. We are also looking at how we can make further progress in ensuring reciprocity in exchange of information. For example, good progress is currently being made in establishing reciprocal arrangements with Australia, which is one of the main sources of recruitment for teachers into England. These should be finalised by this summer.
	Work is also in hand to create arrangements with Canada, which, for example, provides a large number of nursing staff to the NHS. We are also seeking to build on existing links to achieve effective bilateral relations with the Republic of Ireland and other EU partners in some cases. This will lead to a service effectively operated by the CRB in respect of those applying for information on employees coming from overseas.
	My noble friend Lady Thornton raised what I accept is the difficult issue of chat room moderators in an industry which is truly international; and therefore how you get the balance right between self-regulation, which in many cases has been successful, and further statutory regulation in the Bill. As the noble Baroness rightly says, Schedule 3, paragraph 2(1)(e), places a requirement on employers to check moderators of public interactive communication devices, which are likely to be used wholly or mainly by children. As she rightly says, many reputable UK service providers currently institute checks in respect of their moderators. Of course we want to build on those arrangements. We recognise that the industry is already an international one, but we believe that it is right to regulate fully those who work within England and Wales to ensure maximum protection.
	My noble friend asked about consultation. I assure her that we will be meeting stakeholders; indeed, the Home Office has a meeting with stakeholders later this week to address specifically the points she has raised. I will write to her after that consultation to let her know how matters stand.
	My noble friend Lord Harris referred to the difficult issue of malicious allegations. I should simply stress that referral information, such as allegations, will never lead to automatic inclusion in the list. The information will always be considered by the independent barring board, which will have the necessary expertise to make judgments about the risk individuals present.
	On volunteers, I do not wish to dissuade them—their important role was rightly highlighted by the right reverend Prelate. Ensuring adequate checks where they have frequent contact with the mentioned groups is covered in the Bill. We need to get the balance right; we accept that. It is precisely in order to do so that we have the distinction between frequent and infrequent and between regulated and controlled activities. If we did not have those distinctions—and some noble Lords thought it might be simpler if we rolled them into one—the scope of heavy-duty requirements in respect of CRB checks and checks on the new system would be extended to large groups. They play a more incidental role as regards children and vulnerable adults, but the role is none the less essential when taken in aggregate. It is very much with volunteers in mind that we have sought to make some of these distinctions.
	The noble Lord, Lord Rix, specifically asked why only a care home is a key setting in respect of adults; why not day centres? Day centres are not easily definable organisations. Our lawyers have looked at this with some care. We would be happy to engage with the noble Lord further on this issue. Many are held in church halls or community centres where a number of activities take place. There is a fungible set of definitions relating to day centres, whereas care settings are much more easily definable and recognisable. I am told that research by Action on Elder Abuse shows that although most abuse in respect of older people occurs in an individual's own home, 23 per cent was reported in care homes, which is a large proportion of the abuse recorded. So we thought that identifying that as a specific setting to be regulated in this way was appropriate.
	I will pursue further points in Committee. I am very grateful indeed to all noble Lords who have spoken. This is an issue of the utmost importance that we should get right. I would simply end with the words of the 1996 Institute of Public Finance study, which looked at the cost of abuse to the state. It made two distinct points. It sought to monetarise the cost of abuse of child abuse to statutory and voluntary agencies at £1 billion a year. There are very high costs in the system for not monitoring abuse earlier and having to deal with it later. It then made the point, which all noble Lords will immediately recognise and support, that:
	"The total cost of abuse far exceeds this estimate. Individuals and families bear most of the consequences, sometimes for the rest of their lives at an incalculable cost".
	It is to avoid those incalculable costs being borne by children, those who work with them and those who work with vulnerable adults in future that we have introduced the Bill. I commend it to the House.
	On Question, Bill read a second time, and committed to a Grand Committee.

Lord Evans of Temple Guiting: My Lords, I hope that at this time it is convenient to discuss the two other draft statutory instruments before us tonight: the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006; and the Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006.
	The first order before us is the Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006. This order is designed to ensure that certain consents granted under Section 36 of, and orders under Schedule 5 to, the Electricity Act 1989, as well as existing electricity permissions, do not conflict with those granted by the Scottish Environment Protection Agency, which I will refer to as SEPA, under the Controlled Activities Regulations 2005. The order also makes amendments requiring the Fisheries Committee: Scotland to consult SEPA and amendments in relation to landfill tax as a result of these regulations which replaced parts of the Control of Pollution Act 1974 with a new remedial action regime.
	Your Lordships may be wondering why there are to be two separate systems of consent for the construction and operation of power stations in Scotland. I will come to that explanation in a few moments. The point of this order is to ensure that those separate systems operate effectively, in line with the "Better Regulation" agenda. Renewable energy is an important part of the Government's energy policy and should be encouraged. However, it is also important to bear in mind the impact of renewable and other sources of energy on the environment in which power stations are built and operated.
	The order has its origins in the water framework directive—directive 2000/60/EC. The directive sets a Europe-wide framework for the long-term sustainable management of water. In Scotland, the directive is implemented by the Water Environment and Water Services (Scotland) Act 2003. In particular, that gives power to Scottish Ministers to introduce regulations to control activities impacting on the water environment. The Water Environment (Controlled Activities) (Scotland) Regulations 2005 were made using that power. The regulations mean that from 1 April 2006, SEPA will be responsible for authorising all controlled activities, such as abstraction of water from the water environment, to ensure compliance with the water framework directive.
	Of course, separate consent will still be required for the construction, extension or operation of generating stations or the grant of water rights under the Electricity Act 1989, so that matters of wider concern may still be addressed—for example, in respect of such matters as the visual impact of power stations on the landscape. It is desirable, therefore, that steps are taken to prevent duplication and potentially conflicting regulatory control between those two regimes.
	The second order before us is the draft Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006. The provisions of the Act make it necessary to amend certain pieces of legislation for England, Wales and Northern Ireland. This order updates legislation to reflect the introduction in Scotland of NHS pharmaceutical care services, which replace the current NHS pharmaceutical services regime. It also reflects changes to the listing made by health boards of NHS optometrists in Scotland.
	The final order before us this evening is the draft Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006, which does three things. It ensures that prisoners transferred on a restricted basis from Scotland to elsewhere in the United Kingdom can continue to be subject to the provisions of the Management of Offenders etc (Scotland) Act 2005. Similarly, it enables prisoners transferred from England and Wales to Scotland to be released in Scotland and to remain subject to the control of the English and Welsh authorities, although monitored by contractors operating the new home detention curfew system in Scotland. These changes will harmonise prisoner release systems throughout the United Kingdom, and will ensure that there is more efficient supervision for prisoners. Finally, the order disqualifies the chief officers of the newly established community justice authorities from being Members of Parliament.
	The order will also change the law in Scotland by creating a new system of release on home detention curfew licence for certain prisoners that is similar to the system operating in England and in Wales. We already transfer prisoners of all types between jurisdictions, so nothing in the order changes that. The key is better reintegration in the interests of public safety. The order ensures that, following their release from custody, such prisoners are appropriately monitored and supervised in the jurisdiction to which they have been transferred.
	I hope that noble Lords have found these explanations and the fuller Explanatory Notes more helpful. The proposals are a sensible and necessary use of the order-making powers in Section 104 of the Scotland Act, and I commend them to the House. I beg to move.
	Moved, That the draft order laid before the House on 27 February be approved [20th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

Lord Maclennan of Rogart: My Lords, I am grateful for the Minister's explanation. I merely have two questions to ask him. The Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006 appears to contain a provision for consents given under the Electricity Act 1989 to be treated as if modified as necessary in order to be consistent with the 2005 regulations. It appears that this process could have an impact on those who have already received consents, so will the Minister say how those interests will be protected? First, will those who have already received consents which have to be realigned with the new provisions be given notification of that fact? What happens if consequential cost is involved in adjusting to the new arrangements, and will there be an appeals procedure to enable such construed changes of condition to be reviewed?
	Can the Minister say whether the arrangements under the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006, which, again, seems entirely sensible, are reciprocal if the provision to enable services to be provided to reorganised Scottish health authorities will be mirrored by Scottish provision to English health authorities? Does that await Scottish legislation? It is clearly desirable that it should be a reciprocal provision.
	Finally, in respect of the management of offenders order, once again, it seems that the intention is that, on both sides of the border, provision for certain offenders management should be broadly comparable. My understanding is that, although the arrangements covering the power to release prisoners on licence before required to do so and to release prisoners on home detention curfew arrangements are operative in England and, by the effect of this order, will be operative in comparable arrangements in Scotland, I am not entirely clear that it works the other way. If I am right, the memorandum indicates that there has been no such legislation in Scotland yet to provide for the similar treatment south of the border. That may be a matter that still has to be decided by the Scottish Executive, but I assume that there have been exchanges between the Government and the Executive on that point.

Tuesday, 28 March 2006.